THAT RIGHT GRANTS THEM LAW NOTES

LAW NOTES
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Summer 2015
THE CONSTITUTION
GRANTS THEM
THAT RIGHT
Justice Kennedy and Court’s Liberals Stick Together to Hold that
Fundamental Right to Marry Extends to Same-Sex Couples
© 2015 Lesbian/Gay Law Notes & the Lesbian/Gay Law Notes Podcast are Publications of the LeGaL Foundation.
LAW NOTES
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EXECUTIVE SUMMARY
276 Supreme Court Issues Historic Marriage
Equality Ruling
288 9th Circuit Summarily Reverses Screening
Dismissal of Transgender Prisoner’s Suit
Seeking Sex Reassignment Surgery
289 Federal Housing Discrimination Law
May Cover Some Sexual Orientation
Discrimination Claims
290 Federal Court Allows Transgender
Challenge to NY Medicaid Regulations to
Continue
291 N.Y. 4th Department Rejects Custody &
Visitation Petition From Same-Sex CoParent
292 New York County Surrogate’s Court Rejects
Challenge to Gay Man’s Will
293 2nd Circuit Revives Transgender Welder’s
Discrimination Case Against Ironworkers
Union
295 Disability Discrimination Action by HIV+
Woman Ticketed by Police Officer Will
Continue
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Contributors
Bryan Johnson, Esq.
William J. Rold, Esq.
Anthony Sears, NYLS ‘16
Matthew Skinner, Esq.
Production Manager
Leah Harper
Circulation Rate Inquiries
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Inquire for rates.
Lesbian/Gay Law Notes Archive
http://www.nyls.edu/jac
298 North Carolina Legislature Overrides Veto
of Statute Allowing Religious Objectors to
“Recuse” from Same-Sex Marriages
Lesbian/Gay Law Notes Podcast
Listen to/download the
Lesbian/Gay Law Notes Podcast
on iTunes (“search LGBT Legal”),
or at http://legal.podbean.com.
300 Federal Judge Allows Trial on Transgender
Inmate’s Claim of Assaults by Sheriff’s
Deputies, but Not on Civil Rights
Conspiracy
301 Boy Scouts of America May Reverse Policy
on Gay Adult Leaders
302 Notes
341 Citations
Y
Editor-In-Chief
Prof. Arthur S. Leonard
New York Law School
185 West Broadway
New York, NY 10013
(212) 431-2156
[email protected]
[email protected]
297 Divided Texas Supreme Court Evades
Deciding Gay Divorce Issue
299 Arkansas Trial Court Orders State
Recognition of “Window Period” Marriages
A
© 2015
The LeGaL Foundation
of the LGBT Bar Association
of Greater New York
http://le-gal.org
ISSN
8755-9021
Lesbian/Gay Law Notes welcomes authors interested in
becoming a contributor to the publication
to contact [email protected].
Supreme Court Issues Historic Marriage Equality Ruling
T
he Supreme Court ruled on June
26, 2015 that “same-sex couples
may exercise the right to marry”
and that “there is no lawful basis for
a State to refuse to recognize a lawful
same-sex marriage performed in
another State on the ground of its samesex character.” Writing for the Court,
Justice Anthony M. Kennedy grounded
these marital rights in the 14th
Amendment’s guarantee that no State
may deprive any person of “liberty”
without due process of law or deny to
any person the “equal protection of
the laws.” He saw the claimed rights
in this case as logical extensions of
the rights recognized by the Court
through his opinions in United States v.
Windsor (2013) and Lawrence v. Texas
(2003). Obergefell v. Hodges, 2015
WL 2473451, 2015 U.S. LEXIS 4250.
By fitting coincidence, the opinion
dissenting opinions for themselves.
Roberts and Alito were appointed by
George W. Bush, Scalia was appointed
by Ronald Reagan, and Thomas was
appointed by George H. W. Bush.
Scalia and Thomas signed on to each
other’s dissenting opinions, and both
also signed on to Roberts’ dissenting
opinion and Alito’s dissenting opinion.
The Court had granted petitions
filed by the plaintiffs in several cases
emanating from the states of Ohio,
Tennessee, Michigan, and Kentucky.
In each of those states, federal district
courts had ruled during 2014 either
that state laws refusing to recognize
same-sex marriages contracted in other
states violated equal protection rights
or that the refusals of the states to allow
same-sex couples to marry violated due
process and/or equal protection rights.
Those rulings were consolidated for
review that ruling, the Supreme Court
ordered argument on two questions:
whether same-sex couples have a
right to marry and whether states
are obligated to recognize same-sex
marriages performed in other states.
A majority of the Court answered both
of those questions in the affirmative.
The four dissenters, each in his own
way, insisted that the question was not
properly before the Court.
This outcome was widely predicted
because of the Supreme Court’s
behavior since October 6, 2014, when
it had declined to review pro-marriage
equality decisions by the 4th, 7th and
10th Circuits, thus lifting stays and
allowing marriage equality rulings
to go into effect in Virginia, Indiana,
Wisconsin, Oklahoma, and Utah, and
eventually in all of the states in those
circuits. After the 9th Circuit ruled
The effect of the ruling was to extend marriage equality to all
jurisdictions subject to the 14th Amendment.
was issued on the second anniversary
of U.S. v. Windsor (June 26, 2013) and
the twelfth anniversary of Lawrence v.
Texas (June 26, 2003). The effect of the
ruling was to extend marriage equality
to all jurisdictions subject to the 14th
Amendment: the 50 states, the District
of Columbia, and perhaps all of the U.S.
territories, although it was expected to
take a while for local compliance to be
complete, depending on the state of play
as to pending litigation and political
opposition in various places.
Justice Kennedy was nominated to
the Court by President Ronald Reagan
in 1987. His opinion was joined by the
four justices appointed by Democratic
presidents: Ruth Bader Ginsburg and
Stephen Breyer (appointed by Bill
Clinton) and Sonia Sotomayor and
Elena Kagan (appointed by Barack
Obama). Chief Justice John Roberts
and Justices Antonin Scalia, Clarence
Thomas, and Samuel Alito all wrote
appeal before the U.S. Court of Appeals
for the 6th Circuit, in Cincinnati. A
three-judge panel voted 2-1 to reverse
the trial courts in an opinion by Circuit
Judge Jeffrey Sutton. DeBoer v. Snyder,
772 F.3d 388 (6th Cir. 2014). The court
held that the U.S. Supreme Court’s
ruling in Baker v. Nelson (1972), that
a challenge to the Minnesota ban on
same-sex marriage did not present a
“substantial federal question,” remained
binding as precedent on lower federal
courts, requiring the court of appeals
to reverse the lower courts and order
dismissal of the lawsuits. However, the
court went on to discuss the merits,
rejecting the plaintiffs’ constitutional
arguments and opining that the question
whether same-sex couples could marry
or have their marriages recognized was
one to be resolved at the state level
through the democratic process, not
through federal constitutional litigation.
In granting the plaintiffs’ petition to
for marriage equality in Latta v. Otter
the day following the cert denials, the
Supreme Court subsequently rebuffed
every request by state officials in
other states in the 9th Circuit to delay
marriage equality rulings going into
effect, and subsequently, the Court
refused to stay marriage equality
rulings from Florida and Alabama,
even though the 11th Circuit had not yet
ruled on the states’ appeals. The denial
of Alabama’s stay motion, weeks after
the Court had granted review of the 6th
Circuit’s decision, decisively confirmed
that there was a majority for marriage
equality on the Supreme Court, to the
consternation of Justice Thomas, as
expressed in his dissent from the denial
of Alabama’s stay petition (which was
joined by Justice Scalia).
The
outcome
being
highly
predictable, the main questions arousing
speculation were which constitutional
theories the Supreme Court would use
Summer 2015 Lesbian / Gay Law Notes 276
to strike down the state marriage bans
and whether any additional member
of the Court — possibly Chief Justice
Roberts — would join the anticipated
majority of Kennedy, Ginsburg,
Breyer, Sotomayor, and Kagan. In
the end Roberts stayed put with his
fellow conservative brethren, and
commentators noted the vehemence
of his dissent. Justice Kennedy’s
opinion took a route that could have
been predicted based on his opinions
in Windsor and Lawrence. Kennedy’s
preferred approach in gay rights cases
(leaving aside his first such opinion, in
Romer v. Evans, which is really a sui
generis equal protection case) is to
rely heavily on his broad conception of
liberty protected by the Due Process
Clause, and to treat equality arguments
as secondary, but interwoven, with
the liberty arguments. In this case,
Kennedy refrained from discussing
whether anti-gay discrimination is
ordinance, was “behavioral” and thus
not cognizable as a characteristic for
purposes of equal protection analysis.
Equality Foundation of Greater
Cincinnati v. City of Cincinnati, 54
F.3d 261 (6th Cir. 1995), vacated
and remanded, 518 U.S. 1001(1996),
reaffirmed on remand, 128 F.3d 289
(6th Cir. 1997), cert. denied, 525 U.S.
943 (1998).
Justice Kennedy began with a quick
review of the situations of some of the
plaintiffs, showing the deprivations they
faced by not being allowed to marry or
to have their marriages recognized, and
then presented a historical overview of
the changing nature of marriage. He
wrote that “changed understandings of
marriage are characteristic of a Nation
where new dimensions of freedom
become apparent to new generations,
often through perspectives that begin
in pleas or protests and then are
considered in the political sphere and
Kennedy’s preferred approach in gay rights
cases is to rely heavily on his broad conception
of liberty protected by the Due Process Clause.
constitutionally
suspect,
focusing
his analysis on the deprivation of a
fundamental right. However, various
statements in the Court’s opinion
could prove helpful to LGBT litigants
in future cases seeking to expand
protection under the Equal Protection
Clause, most particularly the assertion
that sexual orientation is an “immutable
characteristic” and a reaffirmation of
the history of discrimination suffered
by gay people, factors that the Court
has considered in past cases when it
has identified “suspect classifications.”
It is particularly interesting that
Justice Kennedy would address the
immutability issue, unnecessary to
his ruling in this case, since it was
the 6th Circuit that had rejected the
immutable characteristic contention in
the mid-1990s in a Romer-type case,
insisting that “sexual orientation,”
as used in Cincinnati’s human rights
the judicial process. This dynamic can
be seen in the Nation’s experiences with
the rights of gays and lesbians.” After
reviewing the growing recognition of
gay rights by the courts, and referring to
an amicus brief filed by the American
Psychological Association, he wrote,
“Only in more recent years have
psychiatrists and others recognized
that sexual orientation is both a normal
expression of human sexuality and
immutable.”
Kennedy’s ensuing due process
discussion aligned him with the
members of the Court who have
rejected “originalism” and a static view
of constitutional rights, echoing similar
comments he made in his opinions in
Lawrence and Windsor. “The nature
of injustice is that we may not always
see it in our own times,” he wrote. “The
generations that wrote and ratified
the Bill of Rights and the Fourteenth
277 Lesbian / Gay Law Notes Summer 2015
Amendment did not presume to know
the extent of freedom in all of its
dimensions, and so they entrusted to
future generations a charter protecting
the right of all persons to enjoy liberty
as we learn its meaning. When new
insight reveals discord between the
Constitution’s
central
protections
and a received legal stricture, a claim
to liberty must be addressed.” This
passage closely paraphrased a similar
assertion in Lawrence v. Texas, where
Kennedy had asserted that the lack of
deep historical roots for constitutional
protection of private sexual conduct was
not fatal to the Petitioners challenge to
the Texas sodomy law.
Kennedy premised his conclusion
that the petitioners’ due process claims
involved deprivation of a fundamental
right on “four principles and traditions”
which he said “demonstrate that the
reasons marriage is fundamental under
the Constitution apply with equal force
to same-sex couples.” The first “is that
the right to personal choice regarding
marriage is inherent in the concept of
individual autonomy.” The second is
“that the right to marry is fundamental
because it supports a two-person union
unlike any other in its importance to the
committed individuals.” The third is
“that it safeguards children and families
and thus draws meaning from related
rights of childrearing, procreation, and
education.” Finally, he wrote, “This
Court’s cases and the Nation’s traditions
make clear that marriage is a keystone
of our social order.”
As to each of these four principles,
Kennedy penned eloquent explanations
that play into the themes he had
developed in his earlier gay rights
opinions. For example, he wrote, “The
nature of marriage is that, through its
enduring bond, two persons together can
find other freedoms, such as expression,
intimacy, and spirituality. This is true
for all persons, whatever their sexual
orientation.” This sentiment was
certainly familiar from his opinion in
Lawrence. Speaking about marriage’s
“support” for the “two-person union,”
he wrote, “Marriage responds to the
universal fear that a lonely person
might call out only to find no one there.
It offers the hope of companionship and
understanding and assurance that while
both still live there will be someone
to care for the other.” After observing
that “hundreds of thousands of children
are presently being raised” by samesex couples, he wrote: “Without the
recognition, stability, and predictability
marriage offers, their children suffer
the stigma of knowing their families
are somehow lesser. They also suffer
the significant material costs of being
raised by unmarried parents, relegated
through no fault of their own to a more
difficult and uncertain family life. The
marriage laws at issue here thus harm
and humiliate the children of same-sex
couples.” Again, a familiar sentiment,
this time from his opinion in U.S. v.
Windsor.
In explaining why the right to
marriage is a fundamental right,
Kennedy observed: “States have
contributed to the fundamental
character of the marriage right by
placing that institution at the center of
so many facets of the legal and social
order. There is no difference between
same- and opposite-sex couples with
respect to this principle.” As he had
observed in 2003 when he wrote for
the Court in Lawrence striking down
the Texas sodomy law, he reiterated in
this case: “The limitation of marriage
to opposite-sex couples may long
have seemed natural and just, but its
inconsistency with the central meaning
of the fundamental right to marry is
now manifest. With that knowledge
must come the recognition that laws
excluding same-sex couples from the
marriage right impose stigma and
injury of the kind prohibited by our
basic charter.” Several times in the
course of this part of his opinion,
Kennedy referred to the “dignity”
of same-sex couples being denied or
disparaged by denying them the right to
marry, also emphasizing the impact on
their families and children.
Turning to the Equal Protection
Clause as an alternative source of the
marriage right, Kennedy avoided any
explicit pronouncement about whether
sexual orientation discrimination claims
should be subject to heightened scrutiny.
There are two different strands of equal
protection theory: the classification
strand and the fundamental rights
strand. Under the former, the Court asks
whether the challenged law creates a
classification that is “suspect” and thus
subject to heightened or strict scrutiny.
Under the latter, the Court asks whether
the challenged law discriminates
concerning a fundamental right, and
thus will be struck down unless the
government proves a compelling
justification.
Kennedy
focused
explicitly on the second strand.
Referring back to the Court’s equal
protection rulings in earlier marriage
cases, he wrote, “The equal protection
analysis depended in central part on the
Court’s holding that the law burdened
a right of ‘fundamental importance.’ It
was the essential nature of the marriage
right, discussed at length in Zablocki v.
Redhail, that made apparent the law’s
incompatibility with requirements
of equality.” He emphasized the
interconnectedness of the liberty/
due process and equal protection
theories, referring to Lawrence v.
Texas: “Lawrence therefore drew upon
principles of liberty and equality to
define and protect the rights of gays
and lesbians, holding the State ‘cannot
demean their existence or control their
destiny by making their private sexual
conduct a crime.’ This dynamic also
applies to same-sex marriage. It is now
clear that the challenged laws burden
the liberty of same-sex couples, and it
must be further acknowledged that they
abridge central precepts of equality.
Here the marriage laws enforced by
the respondents are in essence unequal:
same-sex couples are denied all the
benefits afforded to opposite-sex
couples and are barred from exercising
a fundamental right. Especially against
a long history of disapproval of their
relationships, this denial to same-sex
couples of the right to marry works
a grave and continuing harm. The
imposition of this disability on gays
and lesbians serves to disrespect and
subordinate them. And the Equal
Protection Clause, like the Due Process
Clause, prohibits this unjustified
infringement of the fundamental right
to marry.”
Thus, in the ongoing dispute over
whether the plaintiffs were claiming
a new constitutional right of “samesex marriage” or access to an existing
fundamental right to marry, the Court
in this case adopted the broader view,
disclaiming any notion that this case
was recognizing a “new” constitutional
right of same-sex marriage. In the
view of the Court, same-sex couples
were asking to be afforded the same
fundamental right to marry that was
accorded to different-sex couples.
Although
some
commentators
quickly criticized the Court for failing
to invoke the classification strand of
Equal Protection or to explicitly rule
that heightened scrutiny applied to
government policies that discriminate
because of sexual orientation, careful
review of the Court’s opinion would
provide support for a heightened scrutiny
argument. The Court acknowledged
the history of sexual orientation
discrimination in the United States,
referred at least twice to “immutability”
in connection with sexual orientation,
and made clear that it did not consider
a person’s sexual orientation to be
indicative of his or her ability to
contribute to society. Furthermore, the
Court has never indicated that political
powerlessness, the fourth factor in
some equal protection analyses, is a
sine qua non for a suspect classification.
To make it such would be inconsistent
with the Court’s recent equal protection
jurisprudence, since the Court employs
strict scrutiny in evaluating so-called
“reverse
discrimination”
claims
brought by white men, and nobody
would dare argue that white men
lack political power in contemporary
American society. In this connection,
the Court’s failure explicitly to invoke
heightened scrutiny in its last major gay
rights decision, U.S. v. Windsor, did not
give pause to the 9th Circuit when it
ruled, relying on Windsor, that sexual
orientation claims merit heightened
scrutiny. See, SmithKline Beecham v.
Abbott Laboratories, 740 F.3d 471,
rehearing en banc denied, 759 F.3d 990
(9th Cir. 2014).
Justice Kennedy rejected the states’
argument that this decision was being
made without sufficient “democratic
discourse,” pointing out that same-sex
marriage has been a topic of debate for
decades, at least since Baker v. Nelson,
and asserting that “there has been far
more deliberation than this argument
acknowledges,” referencing referenda,
Summer 2015 Lesbian / Gay Law Notes 278
legislative debates, “countless studies,
papers, books, and popular and
scholarly writings.” Indeed, he pointed
out, “more than 100 amici” had filed
briefs with the Court presenting a
wide range of perspectives on all
sides of the issue. And, he pointed out,
“the Constitution contemplates that
democracy is the appropriate process
for change, so long as that process
does not abridge fundamental rights.”
Having found that the marriage bans
abridge a fundamental right, he found
that judicial action was justified. “The
dynamic of our constitutional system
is that individuals need not await
legislative action before asserting a
fundamental right.”
Kennedy also rejected the argument
that the Court should refrain from this
ruling because of possible adverse
impact on traditional marriages,
finding that the argument “rests on a
counterintuitive view of opposite-sex
have arisen in recent years involving
recalcitrant wedding photographers,
florists, bakers and the like, eliding any
mention of “free exercise” as such, a
point emphasized in dissent by Chief
Justice Roberts.
Kennedy briefly addressed the
second question certified by the
Court for argument, pointing out that
all parties had acknowledged that
if the Court found a right for samesex couples to marry, the right to
have those marriages recognized by
the states would follow as of course.
“It follows that the Court also must
hold — and it now does hold — that
there is no lawful basis for a State to
refuse to recognize a lawful same-sex
marriage performed in another State on
the ground of its same-sex character.”
Although Kennedy did not mention
Section 2 of the Defense of Marriage
Act, which purports to excuse states
from according “full faith and credit”
Having found that the marriage bans abridge
a fundamental right, he found that judicial
action was justified.
couples’ decision making processes
regarding marriage and parenthood.
Decisions about whether to marry
and raise children are based on many
personal, romantic, and practical
considerations; and it is unrealistic to
conclude that an opposite-sex couple
would choose not to marry simply
because same-sex couples may do so.”
The Court devoted just one
paragraph to the potential clash over
religious liberty, asserting that the 1st
Amendment “ensures that religious
organizations and persons are given
proper protection as they seek to teach
the principles that are so fulfilling
and so central to their lives and faiths,
and to their own deep aspirations to
continue the family structure they
have long revered.” However, Kennedy
shied away from opining about how
the balance of rights might be struck
in particular cases of the type that
to same-sex marriages contracted in
other states, it is effectively a dead letter
after this decision. At the time of its
enactment in 1996, some constitutional
experts had opined that it was merely
symbolic, since the right of states to
refuse to recognize marriages that
violated their articulated public policies
had been long recognized, and many
of the marriage recognition decisions
rendered by lower federal courts over
the past two years had ignored Section
2 of DOMA entirely, premising their
decisions on the 14th Amendment.
Justice Kennedy concluded with a
paragraph integrating the main points
of his analysis in eloquent fashion: “No
union is more profound than marriage,
for it embodies the highest ideals of love,
fidelity, devotion, sacrifice, and family.
In forming a marital union, two people
become something greater than once
they were. As some of the petitioners
279 Lesbian / Gay Law Notes Summer 2015
in these cases demonstrate, marriage
embodies a love that may endure even
past death. It would misunderstand
these men and women to say they
disrespect the idea of marriage. Their
plea is that they do respect it, respect
it so deeply that they seek to find
its fulfillment for themselves. Their
hope is not to be condemned to live
in loneliness, excluded from one of
civilization’s oldest institutions. They
ask for equal dignity in the eyes of
the law. The Constitution grants them
that right.” Thus, at the end, Kennedy
recurred to the same principle he had
invoked two years ago in striking down
Section 3 of the Defense of Marriage
Act: equal dignity, which combines the
concepts of equal protection and due
process.
Chief Justice Roberts penned a
“who decides?” dissent, along the
lines previously articulated by Judge
Sutton in the 6th Circuit opinion that
the Court was reversing in this case.
“The fundamental right to marry does
not include a right to make a State
change its definition of marriage,” he
wrote, insisting that defining marriage
was the state’s prerogative as a matter
of democratic process. He found “the
majority’s approach” to be “deeply
disheartening.” His dissent ended up
being slightly longer than Kennedy’s
opinion for the Court, embracing
simplistic notions of the history of
marriage that were directly contradicted
by the detailed amicus briefs submitted
on behalf of the plaintiffs. For example,
he referred to a “universal definition”
of marriage as the “union of a man
and a woman,” thus ignoring the
numerous cultures in which plural
marriage has long been accepted. He
referred to several ancient civilizations
as providing examples of the deeplyrooted traditional concept of marriage
being the union of one man and one
woman. (This quickly backfired, as an
internet post debunking this claim as
to the four civilizations he mentioned
quickly went viral and was picked up
by the mainstream press, most notably
the Washington Post.) Rejecting
Kennedy’s empathetic view of the
plaintiffs’ claims, Roberts asserted,
“There is, after all, no ‘Companionship
and Understanding’ or “Nobility and
Dignity” Clause in the Constitution.” He
raised the question whether the Court’s
opinion would open the issue of plural
marriage, which is being litigated by
fundamentalist Mormons, and insisted
that Kennedy’s argument sounded more
in moral philosophy than in law. He
also sounded the alarm, as noted above,
about Kennedy’s failure to expressly
acknowledge the Free Exercise Clause
as a potential protection for those would
reject marriage equality on religious
grounds, predicting that there would be
lots of litigation on this issue.
In conclusion, Roberts wrote: “If
you are among the many Americans—
of whatever sexual orientation—who
favor expanding same-sex marriage, by
all means celebrate today’s decision.
Celebrate the achievement of a desired
goal. Celebrate the opportunity for a
new expression of commitment to a
partner. Celebrate the availability of
new benefits. But do not celebrate the
Constitution. It had nothing to do with
it.” Justices Scalia and Thomas joined
his dissent.
Justice Scalia, the self-proclaimed
“originalist,” was in fine fulminating
form, characterizing the majority’s
holding as a “Putsch.” He was quick to
observe that the generation that wrote
and adopted the 14th Amendment
would not have seen it as creating a
right for same-sex couples to marry,
and under his jurisprudence that should
end the matter. As he had done in
the Windsor and Lawrence cases, he
sharply criticized the Court for shortcircuiting political debate. Noting the
“unrepresentative” nature of the Court,
he questioned the legitimacy of its
making such a policy decision. “This
is a naked judicial claim to legislative
– indeed, super-legislative – power; a
claim fundamentally at odds with our
system of government,” he exclaimed.
“They have discovered in the
Fourteenth Amendment a ‘fundamental
right’ overlooked by every person
alive at the time of ratification, and
almost everyone else in the time
since.” He also criticized the opinion
as being “couched in a style that is as
pretentious as its content is egotistic.”
As he has frequently done in past
dissents, he decried Justice Kennedy’s
conception of liberty, concluding, “The
stuff contained in today’s opinion has
to diminish this Court’s reputation for
clear thinking and sober analysis.”
Actually, many past decisions of the
Court emanating from its conservative
voices have already done that many
times over. One need only cite Bush v.
Gore and Citizens United for examples
of decisions by the conservative Court
majority
inventing
constitutional
doctrines with no textual or historical
basis to override popular democracy.
Scalia also indulged his habit of
ridiculing Kennedy’s opinions for
their rhetorical flights, in one footnote
implicitly chiding the Democratic
appointees for signing on to Kennedy’s
opinion rather than concurring on their
own grounds, stating in his footnote 22:
“If, even as the price to be paid for a
fifth vote, I ever joined an opinion for
the Court that began: “The Constitution
promises liberty to all within its reach,
a liberty that includes certain specific
rights that allow persons, within a
lawful realm, to define and express
their identity,” I would hide my head in
a bag.” Thomas joined Scalia’s dissent.
Justice Thomas has long contested
the Court’s entire history of substantive
due process doctrine, so this case
was just one more example for him
of illegitimate decision-making. He
argued that refusing to let same-sex
couples marry does not deprive them of
any liberty, insisting that the reference
to “liberty” in the due process clause
should be restricted to its “original”
historic meaning of restrictions on
mobility. Thus, the state restricts your
liberty when it locks you up, but not
when it refuses to let you marry. He
located the origins of this concept in
Magna Carta, the 800-year old English
document signed by King John in 1215
to settle disputes with the nobility
about royal prerogative, and then
traced the concept through English
and American law up to the time of
adoption of the 14th Amendment.
“When read in light of the history of
that formulation,” he wrote, “it is hard
to see how the ‘liberty’ protected by the
Clause could be interpreted to include
anything other than freedom from
physical restraint.” Even accepting a
broader meaning, he held that it should
be restricted to “individual freedom
from governmental action, not as a
right to a particular governmental
entitlement.”
He
insisted
that
“receiving governmental recognition
and benefits has nothing to do with
any understanding of ‘liberty’ that the
Framers would have recognized.” He
also dismissed Kennedy’s references
to “dignity,” arguing that “dignity”
is inherent in humanity and is not
conferred by the government when it
allows couples to marry. Indeed, in a
passage that came in for considerable
scorn from commentators, he asserted
that the government did not withhold
“dignity” from African slaves or
Japanese detainees during World
War II (even though, of course, it was
restricting their mobility in both cases,
and so were certainly deprived of
liberty in the sense Thomas uses the
term). Scalia joined Thomas’s dissent.
Finally, Justice Alito’s dissent
rechanneled his dissent from two
years earlier in U.S. v. Windsor,
quoting from it extensively, arguing
that there were various different
legitimate concepts of marriage and
that it was up to the people, through the
democratic process, to decide which
one to embrace through law. “Today’s
decision usurps the constitutional right
of the people to decide whether to keep
or alter the traditional understanding of
marriage,” he insisted. He particularly
bemoaned the likelihood that this
ruling would lead to the oppression
and vilification of people who oppose
same-sex marriage, predicting many
future disputes. “Recalling the harsh
treatment of gays and lesbians in the
past, some may think that turnabout
is fair play,” he wrote. “But if that
sentiment prevails, the Nation will
experience bitter and lasting wounds.”
Both Scalia and Thomas signed his
opinion. Chief Justice Roberts and
Justice Alito each contended that those
with religious objections to same-sex
marriage would find little comfort in
Kennedy’s opinion, which appeared to
recognize 1st Amendment protection
for the objectors’ beliefs, but not
explicitly for their actions effectuating
those beliefs.
All of the dissents sounded like
rearguard actions seeking to provoke
public discontent with the Court’s
Summer 2015 Lesbian / Gay Law Notes 280
opinion. But in that sense they are
well within the tradition — at least
the recent tradition — of Supreme
Court dissenting opinions from the
very polarized Court. (For example,
Scalia was just as scathing and bitter
in criticizing Chief Justice Robert’s
opinion the previous day upholding
the subsidy provision of the Affordable
Care Act, and Justice Kennedy’s
opinion reaffirming the lower courts’
broad reading of the Fair Housing Act
to cover disparate impact claims.) A
5-4 ruling may be bitterly argued, but
it is no less a precedential holding of
the Court than a unanimous ruling.
Although there had been rumblings in
the weeks leading up to this ruling that
some state officials might try to avoid
complying with a pro-marriage equality
decision, the immediate response of the
governors and attorneys general in the
four states of the 6th Circuit seemed
to be prompt, if reluctant, compliance
with the Court’s decision, with no talk
of petitioning for rehearing.
A long list of attorneys participated
in representing the various plaintiffs
in this case, culminating in the
presentations by three oral advocates
at the Supreme Court: two representing
the plaintiffs – Mary Bonauto and
Douglas Hallward-Driemeier – and one
representing the Obama Administration
in support of the Petitioners – Solicitor
General Donald Verrilli, Jr. All of the
nation’s LGBT litigation groups played
a part as co-counsel to one or more of
the plaintiffs, as did numerous groups
who submitted amicus briefs to the
Court, many of which were cited in the
opinions. There were media reports that
this case attracted the largest number of
amicus briefs ever filed with the Court.
One group among all others will be
particularly affected by this ruling:
Evan Wolfson announced months ago
that upon the achievement of marriage
equality nationwide, his organization
— Freedom to Marry — would wind up
its affairs and cease to exist. After the
opinion was announced, Wolfson stated
that the organization would be winding
up its operations within months, and
announced a celebratory farewell event
in New York City on July 9, at which
Vice President Joseph Biden was the
principal speaker.
IMPLEMENTATION
The sequel to the opinion was
relatively swift in many places. Long
before the Supreme Court would
formally send its decision to the 6th
Circuit to get the ball rolling officially
on compliance after the time for filing
motions for rehearing would expire on
July 17, governors and attorneys general
of the four states in the 6th Circuit –
Michigan, Tennessee, Kentucky, and
Ohio – had indicated that they would
comply and same-sex couples began
to get marriage licenses, in some cases
beginning on the afternoon of June 26.
As an example of swift compliance, the
Michigan Civil Service Commission
quickly posted an advisory on its
website informing state employees who
have same-sex spouses that they had one
month from the date of the Obergefell
decision to enroll their spouses for
state employee benefits coverage. State
employees who married same-sex
spouses on and after June 26 would have
31 days to apply to enroll their spouses
for benefits. Detroit News, July 3. A
Michigan polling firm found that 56%
of respondents approved the Supreme
Court’s ruling, while 68% supported
a proposal to add sexual orientation
and gender identity to the state’s antidiscrimination law. Kalamazoo Gazette
(July 2). In Tennessee, Governor Bill
Haslam issued a directive on July 2 to
executive branch departments requiring
that same-sex marriages be recognized
and treated the same as different-sex
marriages, leading the University of
Tennessee to post on its website after
the Independence Day weekend an
announcement that same-sex spouses of
faculty and staff could enroll for health
benefits. And, on July 9 U.S. Attorney
General Loretta Lynch announced
an important consequence of the
ruling: federal benefits that depend on
marital status would be available to
married same-sex couples regardless
of where they lived, as the universal
requirement of marriage recognition
adopted by Obergefell eliminated any
problem arising from federal statutes
or regulations using a place of domicile
281 Lesbian / Gay Law Notes Summer 2015
rule to determine the validity of a
marriage. Washington Post, July 9.
In Ohio, Governor John Kasich
and Attorney General Mike DeWine
indicated the state would comply and
would not file a motion for rehearing,
despite the urging of one group seeking
to force Justices Kagan and Ginsburg
to recuse themselves for a rehearing
because they had both conducted
same-sex marriage ceremonies before
the case had come before the Court.
Meanwhile, an Ohio state legislator,
Rep. Ron Young, announced that he was
seeking co-sponsors for a bill to protect
businesses from any civil or criminal
liability or adverse treatment by the
state should they refuse to participate in
same-sex weddings due to their religious
objections. Columbus Dispatch, July 7.
Compliance was also swift in some
other states where marriage equality
litigation was pending in the district
courts or at the appellate level. U.S.
District Judge Orlando Garcia in Texas
lifted the stay of his decision within
hours of the Court’s opinion being
announced, according to the Dallas
Morning News (June 26), posting a
report on-line at 11:53 a.m. that day.
Lambda Legal reported on July 2 that
the Employee Retirement System of
Texas had granted a request by Lambda’s
client, Deborah Leliaert, to enroll her
wife for spousal health insurance.
Leliaert had been employed at the
University of North Texas for nearly 24
years, currently as Vice President for
University Relations and Planning. Her
wife had retired in 2011, busying herself
in a variety of volunteer positions that
do not provide health insurance. The
women married in California in 2008,
but ERS refused to recognize their
marriage, even after Judge Garcia ruled
early last year that the Texas ban on
recognizing same-sex marriages was
unconstitutional, as the judge had stayed
his ruling pending appeal. ERS notified
state employees on July 1 that they will
be able to enroll their same-sex spouses.
Lambda had previously filed suit in the
U.S. District Court in Austin, Leliaert
v. Ragland, CASE NO. 1:15-cv-00506
(W.D. Tex., filed 6/11/15).
There were some delays in Louisiana,
Mississippi and Alabama, but those were
being sorted out the following week as
recalcitrant state and local officials
came around to the reality that the
Supreme Court’s decision was final and
binding on them. The 5th Circuit issued
a trio of opinions on July 1 formally
reversing the adverse Louisiana
decision and affirming the Texas and
Mississippi decisions, with orders to the
district courts to proceed accordingly
and implement the Obergefell decision
by July 17. Robicheaux v. Caldwell,
2015 WL 4032118, 2015 U.S. App.
LEXIS 11375; De Leon v. Abbott,
2015 WL 4032161, 2015 U.S. App.
LEXIS 11505; Campaign for Southern
Equality v. Bryant, 2015 WL 4032186,
2015 U.S. App. LEXIS 11581. This
seemed to settle the issue of the states
being required to comply, which Texas
and Mississippi had already begun to do
with reasonable speed, but Louisiana’s
governor,
“Bobby”
Jindal,
was
determined to string things out, refusing
to order state agencies to comply until
the federal trial judge, Martin Feldman,
issued an Order on July 2, accepting
that his prior decision was reversed
and specifically directing compliance
by the named defendants. Robicheaux
v. Caldwell, 2015 WL 4090353 (E.D.
La.). Jindal’s argument for delay was
premised on the 5th Circuit having
given the state until July 17 to comply,
presumably based on the expiration on
that date of time for the losing states
in the 6th Circuit to file motions for
rehearing with the Supreme Court,
something none of them had indicated
any intention to do. Thus, Jindal, a
declared candidate for the Republican
presidential nomination who has called
for a federal constitutional amendment
to overrule the Court’s opinion,
expressed hesitancy about the necessity
to take action before then. Jindal was
already defending a federal lawsuit
brought by the Louisiana chapter of
the ACLU, challenging an executive
order he issued in May purporting to
recognize religious exemptions for state
employees who did not want to provide
services for same-sex couples seeking
marriage licenses and civil marriage
ceremonies. By Thursday, July 2, the
head of Louisiana’s motor vehicle
department had announced that people
looking for name changes on drivers’
licenses and car registrations could
begin applying for them on Monday,
July 6. This announcement seems to
have been provoked by a letter from
the state’s ACLU chapter, warning
that refusal to accept and process such
applications could lead to a lawsuit
against the department. The first samesex couple to marry in New Orleans,
where the local clerks could not comply
with the Supreme Court’s decision until
Gov. Jindal gave the signal in response
to Judge Feldman’s order, was Garth
Beauregard and Robert Welles, who
had their ceremony in New Orleans’
Jackson Square on July 3. It is ironic,
in light of recent developments, that one
of the men bears the same surname as
a famous Confederate general! TimesPicayune, July 3.
On July 7, the Louisiana Supreme
Court issued an order in Costanza
v. Caldwell, 2015 WL 4094655,
dismissing as moot the state’s appeal
Louisiana may not bar same-sex couples
from the civil effects of marriage on the
same terms accorded to opposite-sex
couples.” Thus, under the state’s law
limiting the right to adopt children to
single people and married couples, a
same-sex couple that had married in
California was entitled to adopt. Several
members of the Louisiana court issued
concurrences reiterating how they
were constrained to take this action
because of Obergefell and the rule of
law, even though they were critical
of the U.S. Supreme Court’s ruling,
some very harshly so. Some of these
concurrences were evidently provoked
by the sole dissenting opinion, issued
by Justice Jefferson D. Hughes, III,
who refused to accept the legitimacy
of the U.S. Supreme Court’s decision.
Wrote Hughes: “Judges instruct jurors
every week not to surrender their
honest convictions merely to reach
The 5th Circuit issued a trio of opinions
on July 1 formally reversing the adverse
Louisiana decision and affirming the Texas
and Mississippi decisions.
of a judgment by a Louisiana district
court that the state’s same-sex marriage
ban was unconstitutional in the context
of an adoption case. “In light of the
United States Supreme Court’s opinion
in Obergefell,” wrote the court per
curiam, “and the action of the federal
district court in Robicheaux, the issues
presented in this appeal have been
resolved. Through the action of the
federal courts, plaintiffs have received
all the relief they requested in their
motion for summary judgment, which
forms the basis for this appeal. Given
these developments, there is no longer
a justiciable controversy for this court
to resolve.” Addressing obliquely the
adoption issue from which the case
stemmed, the court stated that “insofar
as plaintiffs seek the benefits of the
civil effects of marriage, Obergefell
compels the conclusion that the State of
agreement. I cannot do so now, and
respectfully dissent. Marriage is not
only for the parties. Its purpose is to
provide children with a safe and stable
environment in which to grow. It is the
epitome of civilization. Its definition
cannot be changed by legalisms.
This case involves an adoption. The
most troubling prospect of same-sex
marriage is the adoption by same-sex
partners of a young child of the same
sex. Does the 5-4 decision of the United
States Supreme Court automatically
legalize this type of adoption? While
the majority opinion of Justice Kennedy
leaves it to the various courts and
agencies to hash out these issues, I do
not concede the reinterpretation of
every statute premised upon traditional
marriage.” Thus, Hughes, broadly
insinuating that same-sex couples might
adopt young children of the same sex
Summer 2015 Lesbian / Gay Law Notes 282
for pedophilic purposes, would oppose
allowing married same-sex couples
to adopt such children, despite the
U.S. Supreme Court’s ruling that they
are entitled to marry and have their
marriages recognized by the state of
their domicile. The concurring opinion
by Justice Guidry specifically responded
to Hughes’ comments about adoption.
After pointing out that Hughes had cited
“no legal authority” for the proposition
that the court could refuse to following
the holding of the U.S. Supreme Court,
he wrote, “I must also respond to the
dissenting opinion’s assertion that the
‘most troubling prospect of same-sex
marriage is the adoption by same-sex
partners of a young child of the same
sex.’ The dissenting opinion appears
to be unaware of the facts of the case
before us, which involved the intrafamily adoption of a boy by the female
spouse of the boy’s biological mother.
See In re Adoption of N.B., 14-314 (La.
App. 3 Cir. 6/11/14), 140 So.3d 1263. In
any event, the dissenting opinion cites
no legal or scientific authority, nor does
the record contain any evidence, that
would support its insinuation.”
In North Dakota, where U.S.
District Judge Ralph Erickson had put a
marriage equality case on hold pending
the Supreme Court’s ruling, the court
issued a judgment and order on June
29 in Jorgensen v. Montplaisir, Case
No. 3:14-cv-58 (D. N. D., Southeastern
Div.), entering judgment for the
plaintiffs and declaring North Dakota’s
constitutional and statutory bans on
same-sex marriage unconstitutional.
In South Dakota, where U.S. District
Judge Karen Schreier had issued a
marriage equality ruling in January
(Rosenbrahn v. Daugaard, 2015 WL
144567, 2015 U.S. Dist. LEXIS 4018
(D. S. D.)) and the state had appealed
to the 8th Circuit, plaintiffs’ attorney
Josh Newell filed a motion with the 8th
Circuit asking the court to formally
affirm Judge Schreier’s decision and
to lift the stay that had been placed on
her order, to facilitate a claim to legal
fees as the prevailing party. Newell had
fronted all the costs of the litigation. He
also represented the plaintiffs in North
Dakota.
Implementation was swift in Georgia,
where local probate judges began
issuing marriage licenses to same-sex
couples soon after the Supreme Court’s
opinion was announced. On July 10,
the Atlanta Journal and Constitution
gave the back-story on this. It seems
that in February, after the Supreme
Court grant cert in Obergefell and it was
widely predicted that the 6th Circuit
would be reversed, a meeting was held
in Decatur involving 20 state probate
judges, vital records officials, and court
staffers to prepare for the likelihood
that same-sex marriage would become
the law. Agreement was reached that
probate judges would comply with such
a Supreme Court ruling and would
prepare appropriate forms in advance.
Even though opponents of marriage
equality were putting substantial
pressure on Governor Nathan Deal
and various probate judges to resist the
ruling, the State Council of Probate
Judges was prepared to respond quickly.
In April, Governor Deal and Attorney
General Sam Olens publicly announced
that Georgia would comply with
whatever the U.S. Supreme Court ruled.
The Probate Judges Council established
a line of communication with the
Attorney General’s Office, which
agreed to issue its interpretation of the
Supreme Court’s decision promptly so
that it could be quickly communicated
to the probate judges. Shortly after the
decision was announced on June 26,
the Attorney General’s office sent out
its order to all the probate judges to
comply, accompanied by appropriately
revised license application forms, and
the Probate Judges Council quickly
responded to scattered reports of
individual probate judges hesitating to
issue licenses by answering questions
and urging compliance. Governor
Deal praised the way this had been
handled, stating: “We don’t want
anything negative or bad to come out
of that decision as it reflects on the
state of Georgia and I’m proud the
people of Georgia haven’t allowed
that to happen.” The newspaper report
contrasted the confused response in
neighboring Alabama, where neither
the state government nor the probate
judges association had prepared to act
decisively, leaving confusion that was
fanned by the outspoken state Chief
Justice, Roy Moore.
283 Lesbian / Gay Law Notes Summer 2015
Things were dragging out in Kansas.
Although Kansas is in the 10th Circuit,
which ruled last year in cases involving
Utah and Oklahoma that were denied
review by the Supreme Court that
same-sex couples are entitled to marry
and have their marriages recognized,
the state had refused to comply fully
with marriage equality rulings by
trial judges, filing obviously frivolous
appeals that were still pending after
Obergefell was decided. Governor Sam
Brownback’s response to the Supreme
Court ruling was to criticize it and,
apparently, to seek ways to further
delay complying with the existing trial
court orders. Although some local
clerks began to issue marriage licenses,
state agencies continued to refuse to
recognize either the resulting marriages
or out-of-state marriages, as inquiries
to local officials drew the response that
they were waiting for advice from the
Attorney General’s Office, where the
matter was still “under study.” This is,
of course, ridiculous, since the Supreme
Court’s opinion was clear on its face
and the local federal courts were bound
by 10th Circuit precedent in any event.
There was nothing to “study.” Wichita
Eagle, July 2. Within a few more
days, however, the state had at least
partially capitulated, although officials
continued to state that the issue of
spousal tax filing was “under study.”
Governor Brownback issued Executive
Order 15-05, titled “Preservation and
Protection of Religious Freedom,”
noting the 2013 passage of a state
religious freedom restoration act in
Kansas, sounding the alarm on the
“potential infringements on the civil
right of religious liberty” posed by the
Supreme Court’s “recent imposition of
same-sex marriage,” and then ordering
that the state government not take any
“discriminatory action” against clergy
or religious organizations who refuse to
be involved with same-sex marriages.
Of course, under the 1st Amendment,
the government has no right to impose
any sort of penalty on religious actors
or bodies in this connection, so to that
extent the EO seemed to be merely
symbolic. However, it also implied that
social welfare organizations run by
religious bodies would not suffer any
penalty or disadvantage for refusing to
work with married same-sex couples,
and that state tax exemptions would
not be threatened as a result of such
refusals. The EO prominently quoted
the state constitution’s religious liberty
paragraph, but appeared to stretch
it a bit to source the EO. Kansas is a
jurisdiction that does not prohibit
sexual orientation discrimination,
and presumably the EO, which is an
order to state officials, would have no
effect on local officials in the three
municipalities and one county that
do ban such discrimination. Kansas
Attorney General Derek Schmidt
joined with 14 other state attorneys
general in a letter to Republican leaders
in Congress, urging passage of a
federal law that would protect the tax
exemptions of religious institutions that
refused to sanction or recognize samesex marriages. This was responding
to a colloquy during oral argument of
Obergefell, when Solicitor General
Donald Verrilli responded to a question
from Justice Alito that it was possible the
precedent of the Bob Jones University
case might apply to this situation. (In
that case, the Supreme Court upheld
a decision by the Internal Revenue
Service to revoke the tax exempt status
of the university because its rule against
interracial dating by students violated
an important federal policy against race
discrimination.) These comments had
set off horrified buzzing among some
church-affiliated schools that have strict
policies against homosexual conduct,
some of which have discharged faculty
and staff members upon learning
that they had entered into same-sex
marriages, and this fear escalated after
the Supreme Court’s opinion.
In Utah, Governor Gary Herbert,
responding to press inquiries, expressed
reluctance to take up modifications to
the state’s anti-discrimination law in
response to the marriage ruling. The
law was amended earlier this year to
forbid sexual orientation and gender
identity discrimination in employment
and housing, with a broad religious
exemption, but did not address public
accommodations, the area in which it
seemed likely that there would be most
contention. Senate Majority Whip Stuart
Adams (R-Layton) reported hearing
“rumors” that some legislators would
be introducing bills addressing the
conflict between “religious liberty” and
nondiscrimination principles. Herbert
said that his support for a religious
freedom bill would depend on “what’s in
it,” stating: “I think shoring up religious
freedom is a good thing, certainly
making sure at the same time we don’t
have any discrimination in violation of
people’s civil rights. They need to go
hand in hand, and I think they can.”
Deseret Morning News, July 9. Samesex couples were able to marry in Utah
for a few weeks after the U.S. District
Court’s December 20, 2013, decision,
and then against after the Supreme
Court’s denial of the state’s cert petition
on October 6, 2014, lifted a stay it had
granted to the state in January 2014.
In Texas, where, as noted above, some
county clerks began issuing licenses on
June 26 after Judge Garcia lifted his stay,
rights in their personal capacities are
irrelevant. (Consider the parallel issue
under the 1st Amendment of freedom
of speech. The Supreme Court has
ruled in Garcetti v. Ceballos, 547 US
410 (2006), that when public employees
speak as part of their job duties, what
they say enjoys no 1st Amendment
protection, because they are speaking
for the government, not themselves.)
Paxton subsequently announced that he
planned to drop an appeal challenging
a ruling by Travis County Probate
Judge Guy Herman that rejected his
motion to dismiss a case brought by a
surviving same-sex partner of an Austin
woman, seeking a determination that the
women had a common law marriage for
purposes of inheritance rights. Herman’s
ruling had led to the first same-sex
marriage in Texas, performed on
February 19 by another Travis County
In Texas, Attorney General Ken Paxton issued
an “Opinion” on June 28 asserting that
local officials with religious objections were
privileged to refuse to issue licenses to samesex couples or to officiate at their weddings.
Attorney General Ken Paxton issued an
“Opinion” on June 28 asserting that local
officials with religious objections were
privileged under the 1st Amendment
to refuse to issue licenses to same-sex
couples or to officiate at their weddings.
Some quick research by marriage
supporters turned up an Attorney
General Opinion from 1983 by Jim
Mattox (Opinion No. JM-1, March 8,
1983) advising local officials that they
could not invoke their personal religious
beliefs to refuse to issue marriage
licenses to mixed-race couples. Quite
a few Texas clerks ignored Paxton and
continued or began issuing licenses.
Paxton’s assertion was ridiculous on
its face; after all, when public officials
perform their duty, they are acting as
the government, not as individuals.
As such, constitutional provisions
endowing them with constitutional
judge, David Wahlberg, on behalf
of Sarah Goodfriend and Suzanne
Bryant. The Texas Supreme Court had
temporarily blocked rulings by Herman
and Wahlberg in response to Paxton’s
petition, but at a July 6 hearing counsel
for the Attorney General informed
Judge Herman that the appeal would
be dropped. Herman then scheduled an
October 5 hearing to determine if the
couple had a common law marriage. Off
the Kuff Blog, 2015 WLNR 20184932
(reporting on Paxton dropping appeals).
* * * Paxton’s “Opinion” led to some
local dramas. In Granbury City, capital
of Hood County, the local clerk, Katie
Lang, objected to the Supreme Court’s
ruling, stating that “marriage is for one
man and one woman because it did
derive from the Bible.” (Presumably she
was aware, or would not acknowledges,
numerous
polygamous
marriages
Summer 2015 Lesbian / Gay Law Notes 284
by Biblical characters that are not
condemned in the sacred text.) This led
to dueling demonstrations pro and con
outside her office on July 2, with threats
to file a law-suit against her if she did
not personally issue licenses to samesex couples. Lang reacted by assigning
some subordinates to issue licenses, but
not until after a lawsuit had been filed,
and even then her office said no licenses
could be issued to same-sex couples
for several weeks while she awaited
new forms from the state. One couple,
James Cato and Jody Stapleton, filed a
federal lawsuit against Lang (complaint
available at 2015 WL 4092474) in the
U.S. District Court for the Northern
District of Texas in Fort Worth, seeking
a declaratory judgment, injunctive
relief, costs and fees, and legal and
equitable relief. They are represented
by Jan Soifer of O’Connell and Soifer
LLP, and Austin Kaplan of Kaplan Law
Firm PLLC. * * * In Rusk County,
County Clerk Joyce Lewis-Kugle
submitted a resignation letter to the
County Commission on July 9, stating
that she could not in good conscience
issue marriage licenses to samesex couples, and the Commissioners
were scheduled to vote to accept her
resignation on July 13. Lewis-Kugle
reportedly decided to resign after being
advised by District Attorney Michael
Jimerson that the Supreme Court ruling
is the “law of the land” with which she
must comply if she was to stay in her
position. * * * A former Texas State Bar
Director, Steve Fischer, was circulating
a petition to file an ethics complaint
against Paxton after the U.S. Supreme
Court’s 25-day period for rehearing
motions expired. Fischer asserted that
Paxton “needs to retract, and he needs
to tell the clerks to just do their jobs.”
Former state legislator Glen Maxey was
not inclined to wait 25 days, and filed his
own complaint against Paxton, in which
he stated: “Paxton has advised state
government officials and employees
that they may refuse to issue same-sex
marriage licenses or conduct same-sex
marriage ceremonies if doing so would
‘violate their sincerely held religious
beliefs.’” Thus, asserted Maxey, Paxton
had “issued an opinion that advises
state and county officials to violate the
U.S. Constitution,” which would in turn
violate their oaths of office. EFE News
Service, July 3; Abiline Reporter-News,
July 7.
In Alabama, where the state’s elected
Chief Justice, Roy Moore, had bitterly
opined against marriage equality and
his court had issued an order blocking
probate judges from issuing licenses
to same-sex couples, the state supreme
court issued a notice to the parties in
that suit, Ex parte State of Alabama,
No. 1140460, on June 29, noting the
25-day period for filing petitions for
rehearing in the U.S. Supreme Court
and asking the parties to submit “any
motions or briefs addressing the effect”
of Obergefell “on this court’s existing
orders in this case” by July 6, 2015,
which appeared to many to have been
interposed for purposes of delay and
confusion, but Moore subsequently
appeared to back off and soon marriage
licenses became available in some
Alabama counties. By July 1, U.S.
District Judge Callie Granade had
issued a brief order lifting the stay she
had imposed on her pre-Obergefell
ruling requiring all Alabama probate
judges to issue marriage licenses, and
soon most of the other probate judges
had fallen into line. By July 3, there were
still at least half a dozen counties where
probate judges either were issuing no
marriage licenses at all or no samesex licenses, all seeking shelter under
Moore’s opinion that compliance with
the Supreme Court’s decision would not
be mandated until the time for rehearing
petitions to be filed expired on July 17.
Press-Register, July 3. On July 6, Mat
Staver of Liberty Counsel, representing
the petitioners against same-sex
marriage in the pending Alabama
Supreme Court case, filed an incendiary
brief arguing that the U.S. Supreme
Court’s decision was illegitimate and
unconstitutional and that the state
supreme court should defy it. Staver’s
argument was constructed from bits
and pieces of the four dissenting
opinions in Obergefell, and sought
precedential grounding in a pre-Civil
War dispute between the Wisconsin
Supreme Court and the U.S. Supreme
Court over the enforcement of the
Fugitive Slave Law by federal officials
in Wisconsin. In re Booth, 3 Wis. 1
(1854); In re Booth, 2 Wis. 157 (1854);
285 Lesbian / Gay Law Notes Summer 2015
Ableman v. Booth, 62 U.S. 506 (1858);
Ableman v. Booth, 11 Wis. 498 (1859).
The brief conveniently ignored that a
Civil War was subsequently fought in
part to vindicate the federal Supremacy
Clause, and that the subsequently
ratified 14th Amendment imposed
federal constitutional constraints on
the state governments through the Due
Process and Equal Protection Clauses,
which are the basis for the Obergefell
decision. Staver also argued that the
probate judges in Alabama who had
religious objections to participation in
same-sex marriages were entitled to 1st
Amendment protection and should not
be required to issue such licenses or
conduct such ceremonies. The Mobile
Press-Register reported on July 15 that
Attorney General Luther Strange said
that he would be filing a document in
the marriage recognition case pending
before U.S. District Judge David
Proctor, stating that out-of-state samesex marriages would be recognized
for all purposes in Alabama, thus
mooting that case to the extent it sought
prospective injunctive relief.
The Supreme Court of Arkansas
issued an order on June 26 dismissing
the state’s appeal in Smith v. Wright, No.
CV-14-427, in which Pulaski County
Circuit Judge Chris Piazza had ruled
early in 2014 that same-sex couples
were entitled to marry in that state.
Many couples had married when Piazza
refused to stay his decision pending
appeal. The Supreme Court declared
the appeal “moot” in light of Obergefell.
The simple statement concealed more
than a year of drama at the court.
One local reporter, Max Brantley of
the Arkansas Times, documented that
an opinion had actually been drafted
late in 2014 upholding Piazza’s ruling,
but had not been issued because the
dissenters had asked for more time to
work on their dissents and, at the end of
the year, the terms of several members
of the court had expired. In light of
changes in membership, there was a
controversy about who would decide
the case. This dragged out for several
months, but ultimately, there was a
heavily-contested solution. The new
majority drafted an opinion reversing
Piazza’s ruling, but again delays by
dissenters working on their draft
stretched things out until the Obergefell
ruling made the entire appellate process
irrelevant. Brantley’s article, published
on July 2, is titled “A timeline of the
Arkansas Supreme Court and the samesex marriage case.” In the meantime,
a federal trial judge had also ruled for
marriage equality in Arkansas, but that
ruling was on hold pending the state’s
appeal to the 8th Circuit, which has
been withdrawn in light of Obergefell,
as were appeals from other states in
that circuit. The state and the plaintiffs
in that case differed on how the 8th
Circuit should act. The state moved the
court on July 8 to vacate the trial court’s
decision as moot, since the governor
and attorney general had announced
that the state would comply with the
Supreme Court’s ruling. Counsel
for the plaintiffs, Jack Wagoner,
disagreed, arguing that the court should
summarily affirm the district court’s
ruling, making the plaintiffs prevailing
parties for purposes of a subsequent
motion for the award of attorney fees.
The state countered that the district
court’s decision had been premised on
different grounds from the Supreme
Court’s opinion. Arkansas Times, July
8. Also, Pam Bradford, the Van Buren
County Clerk, circulated a memo to all
the county clerks announcing that she
would defy the Supreme Court order
and refuse to issue marriage licenses to
same-sex couples, having received an
offer of legal assistance from Liberty
Counsel, and calling on others to do the
same. Arkansas Times, July 8.
In Missouri, Governor Jay Nixon issued
Executive Order 15-04 on July 7, ordering
“all departments, agencies, boards and
commissions in the executive branch
to immediately take all necessary
measures to ensure compliance with
the Obergefell decision in all aspects of
their operations.” He also rescinded his
prior Executive Order 13-14, which he
had issued in response to the Windsor
decision in 2013, instructing the state
tax authorities to allow married samesex couples who filed their federal
taxes jointly also to file their Missouri
taxes jointly, opining that the state
statute requiring married couples to
file their state taxes in the same status
as their federal taxes compelled this
result. In light of Obergefell and the
new executive order, the prior one was
effectively superseded.
In Puerto Rico, where a district
judge had dismissed marriage equality
litigation and the plaintiffs were
appealing to the 1st Circuit, officials
indicated that new license application
and marriage certificate forms were
being printed, and that same-sex couples
could begin applying for licenses as of
July 15. The 1st Circuit asked the parties
to submit their responses to the effect
of the Obergefell decision, which they
promptly did. On July 8, the 1st Circuit
panel issued a very brief Judgement in
Conde-Vidal v Rius-Armendariz, No.
14-2184, which can be quoted in full:
“Upon consideration of the parties’
Joint Response Pursuant to Court
Order filed June 26, 2015, we vacate
the district court’s Judgement in this
case and remand the matter for further
consideration in light of Obergefell v.
Hodges, 2015 WL 2473451. . . We agree
appeal moot. Alaska Dispatch, July 2.
The question of whether county
clerks and similar sorts of local officials
who have religious objections to samesex marriage will be held personally
liable for refusing to issue licenses
to same-sex couples may get an early
test in Kentucky, where the ACLU of
Kentucky filed suit on July 2 on behalf of
four couples who were denied licenses
by the Rowan County Clerk Kim Davis.
The suit sought an injunction to order
Davis to issue the licenses and punitive
damages for violating the four couples’
constitutional rights. Miller v. Davis.
Louisville Courier-Journal, July 3. A
hearing was to be held before District
Judge Bunning on July 13. * * * A
petition seeking a special session of the
legislature to address the problem faced
by county clerks who had religious
objections was submitted on behalf of
57 of the state’s 120 county clerks on
July 8, but Governor Steve Beshear
The question of whether county clerks will
be held personally liable for refusing to issue
licenses may get an early test in Kentucky.
with the parties’ joint position that the
ban is unconstitutional. Mandate to
issue forthwith.” Thus, the government
of Puerto Rico had judicial sanction to
begin allowing same-sex marriages.
Lambda Legal represented the plaintiff
couples in this case together with local
counsel.
Counsel for the state of Alaska and
the same-sex couples who successfully
challenged the state’s marriage ban in
the U.S. District Court filed a joint notice
with the 9th Circuit on July 1 seeking
dismissal of the state’s appeal. District
Judge Timothy Burgess had ruled for the
plaintiffs and refused to stay the ruling,
as did the 9th Circuit, so marriage
equality went into effect in Alaska
in October 2014. The 9th Circuit had
suspended all action on the appeal after
the Supreme Court granted certiorari
in Obergefell in January. The Supreme
Court’s action on June 26 makes the
refused to call such a session, having
published statements asking elected
officials to comply with the Supreme
Court’s ruling. The petitioning clerks
asserted that forcing them to issue
licenses violated their 1st Amendment
Free Exercise rights, and asked for the
adoption of “commonsense legislation
that would modify Kentucky’s
marriage laws to satisfy the concerns
of the majority of Clerks, while still
abiding by the Obergefell ruling.”
Beshear responded that it would cost
the state at least $60,000 to convene
such a special session, an expense
he felt was not justified. The Daily
Independent (Ashland), July 9. Beshear
met with one of the objecting clerks,
Casey County Clerk Casey Davis (no
relation to Kim Davis, apparently),
and told Davis either to issue licenses
or resign his position. Since Davis
is elected, Beshear cannot dismiss
Summer 2015 Lesbian / Gay Law Notes 286
him. * * * State Representative Addia
Wuchner (R-Burlington) announced
that she had filed a bill to prevent the
state from forcing religious figures and
organizations to perform same-sex
marriages, but her proposal would not
excuse state officials from doing their
duty. The Gleaner (Hendersonville),
July 9.
There were also reports during the
first week after the Supreme Court’s
opinion of a few local officials in a
handful of states resigning their offices
rather than comply with the decision.
In Decatur County, Tennessee, it was
reported that the entire staff of the
county clerk’s office resigned en masse
(just three women, but that is apparently
a masse for Tennessee) rather than issue
licenses to same-sex couples. According
to a news report, nobody had applied for
a same-sex license in that county, and
this was the only county in Tennessee
where the local clerk had announced
a refusal to issue them. Jackson Sun,
July 3. Although nobody had been
promoting an affirmative marriage
equality ruling from the Supreme Court
as a jobs-creating measure, it seems
to have opened up some job vacancies
around the country!
In Nebraska, only one county
clerk, Sioux County Clerk Michele
Zimmerman, stated that she would
not issue licenses to same-sex couples,
but the point seemed moot since
she operates in a sparsely-populated
county and rarely receives more than
a handful of license applications each
year; in other parts of the state, clerk’s
offices indicated that even if the county
clerk personally would not issue such
licenses, somebody in the office would
be available to do so. The ACLU
contacted the one recalcitrant clerk,
suggesting that if she actually turned
down an application, a lawsuit could
result. Nebraska is in the 8th Circuit,
where the court of appeals had put
state marriage appeals on hold pending
Obergefell, and the stay of a district
court marriage equality decision in
that state was dissolved in the wake of
the Supreme Court’s ruling. Several
dozen same-sex couples promptly
obtained marriage licenses from
county clerks across the state. Grand
Island Independent, July 2. On June 29,
responding to an inquiry from the
Administrative Office of the Courts, the
Nebraska Judicial Ethics Committee
issued Opinion 15-1, concluding: “In
summary, the Committee concludes
that when the U.S. Supreme Court’s
decision in Obergefell takes effect,
a judge or clerk magistrate may not
refuse to perform a same-sex marriage
notwithstanding the judge’s or clerk’s
personal or sincerely held religious
belief that marriage is between one man
and one woman. A refusal to perform
the ceremony but providing a referral
to another judge willing to perform a
same-sex marriage similarly manifests
bias or prejudice based on a couple’s
sexual orientation and is prohibited.
A judge or clerk magistrate may avoid
such personal or religious conflicts
by refusing to perform all marriages,
because the performance of marriage
ceremonies is an extrajudicial activity
and not a mandatory duty. While a
judge or clerk magistrate who chooses
to only perform marriage ceremonies
for close friends and relatives is not
obligated to perform ceremonies for
those who are not close friends and
relatives, as such a practice is not
based on a discriminatory intent, a
judge or clerk magistrate who performs
marriages only for close friends or
relatives may not refuse to perform
same-sex marriages for close friends or
relatives.” The Committee noted that its
opinions were advisory only, based on
the questions submitted to it.
In Colorado, where same-sex
marriage has been in effect since last
year as a result of the 10th Circuit’s
marriage equality rulings, anti-gay
activists Gene and D’Arcy Straub filed
two ballot measure on July 2, seeking
to “revert all same-sex marriages
to civil unions in Colorado” and
protecting businesses that refuse to
provide goods or services for same-sex
marriages, according to a July 7 report
on Colorado Independent Blog. The
first actually declares that “marriage
is recognized as a form of religious
expression of the people of Colorado
that shall not be abridged through the
state prescribing or recognizing any
law that implicitly or explicitly defines
a marriage in opposition or agreement
with any particular religious belief.”
287 Lesbian / Gay Law Notes Summer 2015
One wonders whether the Straubs have
any knowledge of the 1st Amendment
Establishment Clause. The Legal
Director of the ACLU of Colorado,
Mark Silverstein, described the Straubs’
proposal as “incomprehensible” and
could not withstand a court challenge
in light of Obergefell.
Within days of the decision, the
federal Department of Veterans Affairs
announced the same-sex married
couples were entitled to spousal benefits
regardless of marriage recognition
policy of their place of domicile, in light
of the Court’s holding that states are
constitutionally obligated to recognize
same-sex marriages that were lawful in
the place of celebration. This effectively
moots a pending lawsuit against the
Department brought by the American
Military Partners’ Association on
behalf of veterans whose same-sex
spouses were being denied benefits,
provided, of course, that the holding
is treated as retroactive and the VA is
willing to pay out on claims for benefits
that were being unconstitutionally
denied prior to the Court’s ruling on
June 26. Boston Globe, July 3, 2015.
As of Tuesday, June 30, the New
York Times could report that marriage
licenses had been issued to same-sex
couples in every state, and the wheels
were in motion to get compliance in the
territories as well, although there might
be some delays. Governors in Puerto
Rico, the Virgin Islands, Guam, and
the North Mariana Islands announced
compliance, but the matter was still
under study in American Samoa, where
the peculiar legal status of the island
in relation to the United States raised
questions about whether the Supreme
Court’s ruling was binding there. A
local newspaper interviewed some
gay people who welcomed the Court’s
ruling, but expressed a preference
against trying to implement it in
American Samoa, a small, sociallyconservative place with a population of
about 50,000. One expert on the legal
issues involved indicated that in order
for same-sex marriage to be recognized
in American Samoa, there would
have to be either voluntary action by
the government or litigation, since
U.S. Supreme Court decisions are not
automatically binding there. ■
9th Circuit Summarily Reverses Screening Dismissal
of Transgender Prisoner’s Suit Seeking Sex
Reassignment Surgery
I
n a brief unsigned per curiam
opinion, Ninth Circuit Judges Barry
G. Silverman, Ronald M. Gould, and
Andrew D. Hurwitz reversed a decision
by Chief Judge Ralph R. Beistline (E.D.
Calif., 2013 WL 1790157) that had
dismissed at screening under 28 U.S.C.
§ 1915(e)(2)(B) transgender prisoner
Philip Walker Rosati’s civil rights
complaint about medical care, and that
had denied her leave to amend. Rosati
v. Igbinoso, 2015 WL 3916977 (9th Cir.
June 26, 2015). Now known as Mia
Rosati, the plaintiff claimed that prison
officials were deliberately indifferent to
the serious medical needs presented by
her gender dysphoria, for which sexual
reassignment surgery [“SRS”] “is the
medically necessary treatment.”
The state conceded that Rosati’s
medical needs are “serious” under
Estelle v. Gamble, 429 U.S. 97, 104–06
97 (1976), and that refusal to permit
her to amend her pleadings “justifies
reversal”; but the opinion did not stop
there. The opinion found that Rosati
stated an Eighth Amendment claim by
“plausibly” alleging: (1) severe gender
dysphoria; (2) “repeated episodes
of attempted self-castration despite
hormone treatment”; (3) prison officials’
awareness of her medical history; and
(4) a “blanket policy” against SRS. It
compared Colwell v. Bannister, 763
F.3d 1060, 1063 (9th Cir.2014), which
held that “blanket, categorical denial
of medically indicated surgery solely
on the basis of an administrative policy
that one eye is good enough for prison
inmates is the paradigm of deliberate
indifference.”
Regardless of the legality of a “blanket
policy,” Rosati plausibly alleged that her
symptoms and history “are so severe that
prison officials recklessly disregarded an
excessive risk to her health by denying
SRS solely on the recommendation of a
physician’s assistant with no experience
in transgender medicine, citing Pyles v.
Fahim, 771 F.3d 403, 412 (7th Cir.2014)
(“if the need for specialized expertise. . .
would have been obvious to a lay person,
then the… refusal to engage specialists
permits an inference that a medical
provider was deliberately indifferent to
the inmate’s condition”); and Hoptowit
v. Ray, 682 F.2d 1237, 1252–53 (9th
Cir.1982) (“Access to the medical staff
has no meaning if the medical staff is
not competent to deal with the prisoners’
problems.”), abrogated on other grounds
by Sandin v. Conner, 515 U.S. 472 (1995).
The court found that Rosati plausibly
alleged that “the state has failed to
provide her access to a physician
competent to evaluate her, citing
De’lonta v. Johnson, 708 F.3d 520,
526 n. 4 (4th Cir.2013) (“Appellees. . .
take pains to point out that, absent a
doctor’s recommendation, De’lonta
cannot show a demonstrable need for
sex reassignment surgery. However, we
struggle to discern how De’lonta could
have possibly satisfied that condition
when, as she alleges, Appellees have
never allowed her to be evaluated by a
[gender dysphoria] specialist in the first
place.”). The opinion also found Rosati’s
claim supported by Kosilek v. Spencer,
774 F.3d 63, 91 (1st Cir.2014) (en banc);
and Norsworthy v. Beard, 2015 WL
1478264, at *7–9 (N.D. Cal. Mar. 31,
2015); see also, Fields v. Smith, 653 F.3d
550, 554–59 (7th Cir. 2011) (affirming
a district court’s determination that
a statute barring hormone treatment
and gender reassignment surgery for
prisoners was unconstitutional).
Rosati’s complaint was supported
by “copious citations” to medically
accepted treatment for her dysphoria
and her need for SRS under Standards
of Care from the World Professional
Association for Transgender Health
(“WPATH”). The court found, however,
that no finding about any consensus
about WPATH standards should be made
at the screening level (at which this case
was dismissed), because it necessarily
“would require consideration of matters
outside the complaint.”
The court directed the district court
on remand also to consider the merits of
Rosati’s Equal Protection claims. It did
not elaborate on the claims or address
the level of scrutiny to be applied.
This case should discourage
summary dispositions of transgender
prison treatment claims in the future.
It is also a clear signal to correctional
officials in the states throughout the
Ninth Circuit that federal courts will
expect to see opinions from physicians
experienced in treatment of transgender
patients in future Eighth Amendment
transgender health care cases.
Although initially pro se, Rosati
was represented on the appeal by
Jon W. Davidson and Peter C. Renn,
Lambda Legal Defense and Education
Fund, Inc., Los Angeles; and by Alison
Hardy, Prison Law Office, Berkeley.
The World Professional Association for
Transgender Health appeared as amicus
curiae. – William J. Rold
William J. Rold is a civil rights
attorney in New York City and a former
judge. He previously represented the
American Bar Association on the
National Commission for Correctional
Health Care.
[Editor’s Note: If the Rosati opinion
signals the 9th Circuit’s likely direction
in the state’s appeal of Norsworthy,
then this issue is likely headed to the
Supreme Court, as it would create a
circuit split on the merits between the
1st and 9th Circuits in what is becoming
a frequently litigated issue in federal
courts. Especially in light of recent
developments on coverage for gender
transition under Medicare and the
federal employee benefits program, it
should be difficult for states to defend
the idea that this is not necessary
medical treatment when a qualified
physician concludes that a particular
individual’s gender dysphoria requires
sex reassignment surgery.]
Summer 2015 Lesbian / Gay Law Notes 288
Federal Housing Discrimination Law May Cover Some
Sexual Orientation Discrimination Claims
A
lthough ultimately dismissing
the suit because it was brought
by a straight man conforming to
gender stereotypes, an Alabama federal
district court took the opportunity of
a sexual orientation discrimination
claim to examine the regulations of
the federal Department of Housing and
Urban Development (HUD), and find
that the agency is within its bounds to
interpret the Fair Housing Act (FHA)
as prohibiting discrimination based
on gender nonconformity. Thomas
v. Osegueda, 2015 U.S. Dist. LEXIS
77627 (N.D. Ala. June 16, 2015).
U.S. District Court Judge William
M. Acker, Jr. concluded that “HUD’s
narrow tailoring of jurisdiction
for discrimination based on sexual
the local federal court. The exact details
of his complaint are not specified in the
opinion, but as Judge Acker described
them, Thomas said he was refused
service “because he is not gay” and that
“he was discriminated against based
on his conformity to male stereotypes,
such as stereotypes regarding cooking
and buying furniture.” The respondents
argued that the FHA does not give them
jurisdiction to investigate claims of
sexual orientation discrimination.
Acker acknowledged the respondents’
argument would have easily won in an
“earlier decade,” but adds that “HUD
has taken an increasingly expansive
view of its delegated authority under
the FHA relating to discrimination
based on sexual orientation.” He
Acker found that HUD satisfies the second prong
of Chevron by characterizing HUD’s policy as a
limited one that only “rather discretely includes
discrimination for gender nonconformity.”
orientation to protections for gender
stereotyping in its interpretation of the
FHA is a permissible reading of ‘sex.’”
The FHA is a federal statute signed
into law by President Lyndon Johnson
as part of the Civil Rights Act of 1968.
Its primary prohibition, codified at 42
U.S.C. § 3604(b), makes it unlawful to
refuse to sell, rent, or provide services to
a housing buyer or renter because of that
person’s inclusion in several protected
classes, including “sex.” As with the
other major federal antidiscrimination
statutes, Congress did not define “sex.”
James Earl Thomas originally
brought a discrimination complaint
against Aletheia House, a federally
subsidized
housing
facility
in
Birmingham, Alabama. When his
complaint went unaddressed, he
petitioned for a writ of mandamus
against two local HUD officials, Carlos
Osegueda and Christian Newsome, from
cited a 2010 guidance document,
the 2012 promulgation of the Equal
Access Rule, and a 2014 interpretative
document as laying out HUD’s current
policy of interpreting the FHA as also
prohibiting discrimination based on
sexual orientation or gender identity.
With this in mind, the question
became whether “HUD’s interpretation
of its authority squares with the
statutory language of the FHA.” Acker
admitted that an agency typically has
deference in this kind of situation, and
turned to the well- established Chevron
test to analyze whether to grant that
deference. Since Congress did not
define sex, the second step of Chevron
looks at whether an interpretation is
“permissible.”
Acker found that HUD satisfies the
second prong of Chevron by characterizing
HUD’s policy as “not broadly includ[ing]
all types of discrimination based
289 Lesbian / Gay Law Notes Summer 2015
on sexual orientation,” but rather
as a limited one that only “rather
discretely includes discrimination for
gender nonconformity.” The seminal
U.S. Supreme Court employment
discrimination case of Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), supports
this distinction, as the Supreme Court
there found that discrimination based
on gender stereotypes is cognizable sex
discrimination under Title VII.
Acker cited another decision of his
to buttress this point. In E.E.O.C. v.
McPherson Companies, 914 F. Supp.
2d 1234 (N.D. Ala. 2012), he granted
summary judgment to an employer
because the gay slurs in the complaint
were uttered to a masculine man and,
therefore, outside the scope of Price
Waterhouse.
The same problem doomed
Thomas’s complaint here, as he “does
not petition under a theory of gender
non-conformity but rather relies on
sexual orientation as the sole basis for
discrimination.” Since he “alleges that
he was discriminated against based on
his conformity to male stereotypes,”
HUD has no jurisdiction to act. Acker,
therefore, granted the respondents’
motion to dismiss and denied Thomas’s
motion for a ruling.
The end of the month, however,
brought an even bigger victory for
another expansive interpretation of the
FHA. On June 25, in a ruling surprising
to advocates who had feared the worse,
the U.S. Supreme Court agreed 5-4
that the FHA not only bars intentional
discrimination, but also forbids policies
that have a “disparate impact” on housing
opportunities. Texas Department of
Housing and Community Affairs v.
Inclusive Communities Project, Inc.,
2015 WL 2473449. This, of course,
makes Judge Acker’s upholding of FHA
application to gender nonconformity
claims even more consequential for
LGBT complainants who might be able
to fit their claims into that theory.
– Matthew Skinner
Matthew Skinner is the Executive
Director of LeGaL.
Federal Court Allows Transgender Challenge to NY
Medicaid Regulations to Continue
U
.S. District Judge Jed Rakoff in
Manhattan denied most of New
York State’s motion to dismiss a
lawsuit challenging various limitations
in the state’s Medicaid program relating
to treatment for gender dysphoria.
Judge Rakoff did not immediately
issue a written opinion supporting
his June 26 ruling, indicating that one
would be issued later. The case is Cruz
v. Zucker, No. 14-CV-4456 (JSR)(GWG)
(S.D.N.Y., June 26, 2015).
Medicaid is a joint federal-state
program to provide health care coverage
for medically needy people who lack the
financial resources to pay for adequate
health care. States are not required to
have a Medicaid program, but if they do
they must comply with federal standards
in order to be eligible for federal money
to help pay for the program. In general,
the federal program requires coverage
for medically necessary care.
The lawsuit was brought on behalf
of a class of transgender Medicaideligible New Yorkers seeking various
medical procedures as a part of their
gender transition. It was originally filed
in June 2014 to challenge a New York
State Medicaid regulation banning all
coverage for sex reassignment treatments
and procedures, which had been adopted
during the Pataki Administration in
1998. The lawsuit arose from frustration
about lack of response by the Cuomo
Administration to continuing demands
to change the policy, in an environment
where federal Medicaid and Medicare
programs had been evolving towards
greater coverage in this area. Indeed, the
U.S. Tax Court ruled just a few years ago
that costs for gender transition treatment
could be tax deductible as medically
necessary, reversing a long-time policy,
and just weeks ago the federal Office
of Personnel Management notified
insurance companies covering federal
employees that they were required to
cover such expenses. This New York
lawsuit soon triggered a response from
the state, which adopted a new regulation
effective on March 11, 2015.
However, the new regulation only
went part way towards the plaintiffs’
goal of achieving complete coverage
for
sex-reassignment
procedures
under Medicaid. They quickly filed
an amended complaint, attacking the
failure of the new regulation to provide
complete coverage.
The old regulation was a blanket
prohibition, stating: “Payment is not
available for care, services, drugs,
or supplies rendered for the purpose
of gender reassignment (also known
as transsexual surgery) or any care,
services, drugs, or supplies intended to
promote such treatment.”
The new regulation states that
“payment is available for medically
necessary hormone therapy and/or
gender reassignment surgery for the
treatment of gender dysphoria.” Payment
for hormone therapy is available even if
the individual is not seeking surgical
reassignment. Two qualified New York
State licensed health care professionals
must certify that the individual suffers
from gender dysphoria and that surgery
is medically necessary. The regulation
excludes coverage for people under
age 18, and will not cover gender
reassignment surgery that would render
somebody sterile unless they are at
least 21. This is most significant for
transgender women, since the removal
of male genitalia and reproductive
system organs incident to transition
always produces sterility. The regulation
explicitly excludes a long list of
procedures that are deemed “cosmetic”
and thus not “medically necessary,”
but that transgender individuals may
need in order to accomplish a complete
transition consistent with their gender
identity.
The lawsuit challenges the exclusions
of coverage for younger transgender
people, and sharply disputes the
contention that the various procedures
labeled as “cosmetic” should be
excluded. The mindset of those who
drafted the regulation is exemplified by
its explanation that “cosmetic surgery,
services, and procedures refers to
anything solely directed at improving
an individual’s appearance.” Of course,
Medicaid would cover these procedures
in other contexts, such as reparative and
cosmetic surgery for somebody who has
suffered disfiguring injuries in a fire,
auto crash or similar catastrophe, even
though in such circumstance “improving
an individual’s appearance” may be the
primary goal of a particular procedure.
The point is that these procedures are not
sought by transgender individuals solely
to improve their appearance, but rather
to bring their appearance into more full
accord with their gender identity.
The plaintiffs argue that these
additional procedures can be centrally
important for a successful gender
transition process. The goal is not just to
eliminate or modify unwanted genitalia
and internal organs. It is rather to assist
the individual in achieving a physical
form that is consistent with their gender
identity and how it is expressed to the
world. The Complaint filed in this case
spells out the problems encountered by
some of the plaintiffs who were unable
to access these procedures, which,
they argue, are necessary for them to
be able to present themselves in their
desired gender. An incomplete transition
makes their transgender status obvious,
“outing” them and leaving them
vulnerable to harassment or worse.
The legal theory behind the lawsuit
is that denial of these services to those
under 18, and the blanket denial of a
range of procedures that are necessary
to effectuate a successful gender
transition, violates the state’s obligations
under the federal Medicaid statute to
cover medically necessary care and also
raises constitutional issues of unequal
treatment, as transgender people are
being excluded from access to treatments
and procedures that are covered in other
contexts. The Complaint also alleges
a violation of the non-discrimination
requirements of the Affordable Care Act
(ACA).
The Attorney General’s office quickly
responded to the Amended Complaint
by filing a motion to dismiss the case.
The office’s brief, submitted in the name
of Attorney General Eric Schneiderman
by Assistant Attorneys General John
Gasior and Zoey S. Chenitz, argued that
Summer 2015 Lesbian / Gay Law Notes 290
the 11th Amendment bars the plaintiffs’
constitutional claims, and that the
Medicaid statute’s requirements are not
enforceable by individuals in a federal
lawsuit. Furthermore, they argued, the
exclusion of those under age 18 would
not violate any provisions of the statutes
that the plaintiffs rely upon, the denial
of coverage for cosmetic procedures
was not “ripe” for review based on the
factual allegations in the Complaint,
and, they argued, the Complaint did not
even raise a plausible claim for violation
of the specific Medicaid regulation upon
which the plaintiffs are relying.
Judge Rakoff rejected most of the
Attorney General’s arguments, at least
at this early stage of the lawsuit for
purposes of determining whether the
case should be thrown out or allowed to
continue.
According to a summary of his
ruling published by the New York
Law Journal on June 30, he refused to
dismiss the claims based on “refusal
to fully fund the treatment of gender
identity disorder or gender dysphoria”
including “refusing surgery for those
under 18.” He also refused to dismiss
a sex-based discrimination claim
under the ACA, but granted the state’s
motion to dismiss an ACA claim for
youth hormone therapy for those under
18. He also dismissed a claim under a
section of the Medicaid law requiring
the state to have reasonable standards
for determining eligibility for the extent
of medical assistance. Rakoff noted that
the parties had agreed to dismiss the
constitutional claim. An explanation for
his rejection of the arguments made by
the Attorney General’s office in its brief
awaits publication of an opinion.
The plaintiffs are represented by
the Sylvia Rivera Law Project and
the Legal Aid Society, with pro bono
assistance from lawyers at the firm
of Willkie Farr & Gallagher LLP.
Sumani Lanka, a Legal Aid Society
attorney, told the Law Journal, “The
state doesn’t really understand what
gender identity is. Gender identity isn’t
just reassignment surgery – it has to do
with how a person perceives themselves
and identifies themselves. It shouldn’t be
that the state arbitrarily limits treatment
that is medically necessary for gender
dysphoria.” ■
N.Y. 4th Department Rejects Custody
& Visitation Petition From Same-Sex
Co-Parent
R
elying on a quarter-century
old N.Y. Court of Appeals
precedent under which a
same-sex co-parent is considered a
“legal stranger” to the child she was
raising with her former partner, the
New York Appellate Division, 4th
Department has affirmed a decision
by Chautauqua County Family Court
Judge Judith S. Claire to dismiss a
petition for custody and visitation filed
by Brooke S. Barone. The ruling in
Barone v. Chapman, 2015 N.Y. App.
Div. LEIS 5226, 2015 WL 3797129,
child, arguing that the child’s best
interests should be “paramount” over
the legal formalities, and that “the
standing accorded to parents should
extend to those who have a recognized
and operative parent-child relationship,
regardless of their sexual orientation.”
He further argued that the court should
use the doctrine of equitable estoppel,
arguing that a legal parent who has
fostered and encouraged her unmarried
partner to form a relationship with her
child should be forbidden by the court
to deny the reality of that relationship
In the absence of a second-parent adoption,
the courts have adhered to the “legal
stranger” rule, and the legislature has yet to
modify the statutes on parental standing to
take account of non-traditional families in
New York.
was issued on June 19, 2015.
Brooke Barone and Elizabeth
Chapman were same-sex partners
and Barone had been co-parent of
Chapman’s son. They did not marry
and Barone never adopted the child.
After they ceased to be partners Barone
filed this petition seeking to have the
Family Court determine custody and
visitation issues. The court appointed
R. Thomas Rankin, an attorney in
Jamestown, to represent the interest of
the child. Barone represented herself in
the proceeding.
Chapman filed a motion to dismiss
the petition, arguing that Barone did
not have standing to seek custody or
visitation because she had no legal
relationship to the child. Rankin
opposed the motion on behalf of the
291 Lesbian / Gay Law Notes Summer 2015
by raising an objection to standing.
Judge Claire, finding herself bound by
New York precedents, dismissed the
petition.
The Appellate Division was equally
dismissive of Rankin’s argument.
“Those contentions are without merit,”
it wrote, quoting from an Appellate
Division ruling that “the Court of
Appeals has recently reiterated that a
nonbiological, nonadoptive parent does
not have standing to seek visitation
when a biological parent who is fit
opposes it, and that equitable estoppel
does not apply in such situations even
where the nonparent has enjoyed a
close relationship with the child and
exercised some matter of control over
the child with the parent’s consent.”
The court noted earlier cases involving
same-sex couples, in which the Court
of Appeals had stated that “parentage
under New York law derives from
biology or adoption” and the Court
of Appeals’ 1991 ruling, Alison D.
v. Virginia M., 77 N.Y.2d 651, had
created a “bright-line test” under
which a person who was neither the
biological or adoptive parent of a
child is considered a legal stranger
without standing to seeking custody or
visitation. A few courts have departed
from that more recently in the context
of married same-sex couples, finding
that when a married woman bears a
child, her spouse should be presumed
to be the child’s legal parent, but the
Court of Appeals hasn’t yet ruled on
such a case.
Concluded the Appellate Division
panel, “We reiterate that, as the Court
of Appeals unequivocally stated, ‘any
change in the meaning of “parent”
under our law should come by way
of legislative enactment rather than
judicial revamping of precedent.’
Finally, we note that petitioner
‘failed to sufficiently allege any
extraordinary
circumstances
to
establish her standing to seek custody’
as a nonbiological, nonadoptive parent.”
The Court of Appeals has recognized
that such special circumstances
might justify bending the rules, but
in the Alison D. case and subsequent
cases relying upon it, the court have
found that same-sex couples raising
a child together do not automatically
qualify under the “extraordinary
circumstances” rule.
After Alison D. was decided,
the Court of Appeals in a later case
construed the Adoption Law to allow
same-sex partners to adopt children
they were co-parenting without
terminating the parental rights of
achild’s legal parent, providing a clear
path for same-sex partners to avoid this
result. However, in the absence of such
an adoption, the courts have adhered
to the “legal stranger” rule, and the
legislature has yet to modify the
statutes on parental standing to take
account of non-traditional families in
New York. ■
New York County Surrogate’s Court
Rejects Challenge to Gay Man’s Will
N
ew York County Surrogate’s
Court Judge Nora Anderson has
rejected a challenge to the will
of Mauricio Leyton, a gay man who had
designated his former lover as executor
and a principal beneficiary under a
will he made in 2001, a year before
the men had a commitment ceremony
and several years before they ceased
to live together as partners. Leyton’s
mother and sister had challenged the
will, arguing that David Hunter was
disqualified under a New York statute
providing that a “former spouse”
cannot inherit. On June 16, Surrogate
Anderson granted Hunter’s motion
compromise, creativity and commitment
that the world recognizes as marriage.”
The officiant also noted that the state
did not recognize this union, but
commented, “Fortunately, this is of no
importance.”
Leyton and Hunter did not register as
New York City civil union partners and
ceased to live together around 2008, but
remained close friends, owning some
property jointly and maintaining some
joint accounts. They signed a document
at the time of their breakup in which,
according to the Law Journal account,
Leyton “expressed interest in buying
out Hunter’s ownership in a cooperative
Leyton’s mother and sister argued that but
for New York’s unconstitutional refusal to
allow same-sex marriage at the time, the men
would have been married.
to dismiss the challenge. The case is
Matter of Mauricio Leyton, Deceased,
No. 2013-4842/A/B (N.Y. County
Surrogate’s Court, June 16, 2015),
NYLJ 1202730202742 (June 23, 2015).
Leyton and Hunter were longtime
friends of ten years’ standing when
Leyton signed his will on January 11,
2001. He appointed Hunter to be his
executor and a major beneficiary, leaving
him all of his personal property and
one-half of the residuary estate, which
ultimately included real property as
well. The will referred to Hunter as “my
partner David,” according to a June 23
report about the case in the New York
Law Journal. In 2002 the men had a
commitment ceremony at the RitzCarlton Hotel, which they described
in printed invitations as a “Ceremony
of Union and Commitment,” during
which the officiant said that the couple
was entering a “state of companionship,
apartment and lending Hunter $40,000
to buy another apartment.” They also
co-owned some property on Long
Island as joint tenants with rights of
survivorship. After New York passed
its Marriage Equality Law in 2011
Leyton served as the official witness
when Hunter married another man.
In all this time Leyton never revoked
the original will or signed a new one.
Leyton suffered a fatal heart attack in
December 2013 while traveling.
Hunter filed the will for probate in
2014, and Leyton’s mother and sister,
residents of Chile, sought to contest
Hunter’s appointment as executor and
status as a beneficiary. They argued
that the court should treat Hunter as a
divorced spouse, emphasizing the words
of the officiant at the commitment
ceremony, and arguing that but for New
York’s unconstitutional refusal to allow
same-sex marriage at the time, the men
Summer 2015 Lesbian / Gay Law Notes 292
would have been married. They relied
on a recent Connecticut Supreme Court
decision, which had accepted such a
“would have been married” argument
in connection with a loss of consortium
claim filed by the survivor of a lesbian
relationship in the context of a medical
malpractice claim.
Surrogate Anderson did not mention
the Connecticut case in her opinion,
focusing her analysis entirely on
the New York statute. “Respondent
(Hunter) points out that at the time the
commitment ceremony was performed,
it was not cognizable in State law as
formalizing a marriage, and that his
subsequent break with decedent therefore
was not ‘separation,’ ‘abandonment,’
or ‘divorce’ within the meaning
of the statutes cited by petitioners.
Those statutes, EPTL 5-1.2 and 5-1.4,
respectively spell out circumstances
under which a spouse is disqualified as
a ‘surviving’ spouse for the purposes of
inheritance and other family rights and
under which a disposition to or fiduciary
appointment of a spouse under a will is
revoked,” she wrote. She insisted that
“it is the province of the Legislature to
decide questions regarding same-sex
marriage,” referring to the New York
court decisions rejecting constitutional
challenges to the pre-2011 marriage
ban. “Here, petitioners seek to have
this court apply the Marriage Equality
Act retroactively to the commitment
ceremony, deeming that ceremony
as formalizing a marriage and the
subsequent separation as a divorce.
Given that the Legislature did not
authorize same-sex marriage until 2011,
this court cannot deem the commitment
ceremony to have sanctified a marriage,
so decedent and the executor cannot be
deemed to be divorced.”
Thus, Surrogate Anderson ruled
that the petition should be denied and
Hunter’s motion to dismiss be granted.
Hunter is represented by Matthew
Raphan, an associate of Brian A. Raphan
P.C. in Manhattan. The mother and
sister, Fidelisa Eliana Latorre Figueroa
and Ana Marie Leyton Lattore, are
represented by Stanley Ackert III, who
is contemplating filing an appeal. ■
2nd Circuit Revives Transgender
Welder’s Discrimination Case Against
Ironworkers Union
A
panel of the U.S. Court of
Appeals for the 2nd Circuit,
reversing the dismissal of a
Title VII discrimination claim filed
by a transgender welder against his
union, ruled that failure to exhaust
administrative remedies is not a
jurisdictional bar and that the district
court incorrectly failed to discern an
alternative federal ground for the lawsuit
under the National Labor Relations
Act. As such, the district court must
reconsider both its decision on the motion
to dismiss and its decision not to assert
jurisdiction over state and local law
claims. Fowlkes v. Ironworkers Local
40, 2015 WL 3796386, 2015 U.S. App.
hall. In the construction industry in
New York City, most union-represented
jobs are obtained through hiring hall
referrals. Although Fowlkes received
a few referrals, he claims to have not
received the number of referrals to
which he was entitled by virtue of his
position on the union seniority list and
level of experience. He also recounted
various remarks made to him by the
union agents reflecting discriminatory
attitudes because of his gender identity.
Fowlkes first filed a charge with
the Equal Employment Opportunity
Commission (EEOC) alleging a
violation of Title VII on May 29, 2007.
EEOC issued a “right to sue” letter on
The decision is particularly notable in
flagging the possibility that gender identity
discrimination by a union hiring hall may
violate the union’s duty of fair representation.
LEXIS 10339 (2nd Cir., June 19, 2015).
The decision is particularly notable
in flagging the possibility that gender
identity discrimination by a union
hiring hall may violate the union’s duty
of fair representation under the National
Labor Relations Act, a little-explored
source of protection for sexual minority
employees.
Cole Fowlkes, “who self-identifies as
male but was born biologically female”
according to Circuit Judge Susan L.
Carney’s opinion for the court, alleges
that his union and two of its business
agents, Danny Doyle and Kevin
O’Rourke,
“discriminated
against
him on the basis of sex and retaliated
against him for filing an earlier action
against them.” Although various forms
of discrimination are alleged, the most
egregious is refusal to refer Fowlkes
for work through the Local’s hiring
293 Lesbian / Gay Law Notes Summer 2015
July 10, 2007, informing Fowlkes that it
had decided not to take further action
on his claims but he was free to sue on
his own behalf. At the time, during the
Bush Administration, the EEOC was
set against sex discrimination claims
by transgender complainants under
Title VII. Fowlkes then filed an action
pro se in the U.S. District Court for
the Southern District of New York on
January 25, 2008, unfortunately more
than 180 days after the right to sue
letter was issued, and the district court
dismissed the case upon the defendants’
motion as time-barred, since the statute
provides that a complainant has 90 days
to file suit after receiving such a letter
from the EEOC. As Fowlkes continued
to experience discrimination, he filed
a second federal court complaint pro
se, also in the U.S. District Court for
the Southern District of New York, in
July 2011, alleging that the defendants
violated his “Civil Rights (involving
Employment)” by subjecting him to
harassment and refusing to refer him
for work based on his sex. He did not
file a new EEOC charge or obtain a
new “right to sue” letter before filing
this second complaint. He also asserted
discrimination claims under the New
York State and City Human Rights Laws.
Again the defendants moved to dismiss,
this time resting on the argument that
Fowlkes’s failure to file a new EEOC
charge deprived the court of jurisdiction
to hear his federal claims. The District
Court responded that because Fowlkes
had not complained to the EEOC about
conduct occurring after his earlier
EEOC complaint was filed, the court’s
jurisdiction was “uncertain.” The
judge gave Fowlkes leave to amend his
complaint to detail any state claims that
weren’t raised in the prior, dismissed
action, and to allege any facts relevant
to his attempt to exhaust administrative
remedies prior to filing this new lawsuit.
Fowlkes filed an amended complaint in
November 2011, but the court concluded
that his Title VII claim “must be
dismissed because he does not allege
that he exhausted his administrative
remedies,” so the court concluded it
lacked jurisdiction over the Title VII
claim and thus that it lacked jurisdiction
to entertain his state law claims without
any federal claim remaining in the case.
Fowlkes appealed to the 2nd Circuit,
this time represented by counsel, Robert
T. Smith of Katten Muchin Rosenman
LLP, who in addition to arguing that the
failure to exhaust was not necessarily
fatal on the question of jurisdiction
first advanced the idea that Fowlkes’
factual allegations could support a
federal claim under the National Labor
Relations Act for violation of the duty
of fair representation. The 2nd Circuit
found merit in both arguments.
First, Judge Carney pointed out, there
is ample precedent for the argument that
the statutory exhaustion requirement
under Title VII may be waived on
equitable grounds, and in this case
there were two possible arguments to be
made. One is that filing a second EEOC
complaint would have been futile, since
at the time Fowlkes filed his second
complaint in federal court, the EEOC
was still adhering to the position it had
taken in response to his first complaint:
that gender identity discrimination is
not actionable under Title VII. “When
Fowlkes filed his 2011 complaint,”
Carney explained, “the EEOC had
developed a consistent body of decisions
that did not recognize Title VII claims
based on the complainant’s transgender
status. It was not until Macy v. Holder,
NO. 0120120821, 2012 WL 1435995
(E.E.O.C. Apr. 20, 2012), published
after Fowlkes filed his 2011 complaint,
that the EEOC altered its position and
concluded that discrimination against
transgender individuals based on their
transgender status does constitute sexbased discrimination in violation of
Title VII. Thus, Fowlkes’s failure to
exhaust could potentially be excused on
the grounds that, in 2011, the EEOC had
‘taken a firm stand’ against recognizing
his Title VII discrimination claims.”
Furthermore, the court noted that
there was a second possible equitable
defense for failure to file a new EEOC
claim: that “his more recent allegations
of discrimination may be ‘reasonably
related’ to the discrimination about
which he had filed an earlier charge
with the EEOC.” In such a case, wrote
Carney, citing the 2nd Circuit’s decision
in Terry v. Ashcroft, 336 F.3d 128 (2003),
“the failure to raise the allegations in
the complaint before the EEOC may
not bar federal court proceedings.”
Judge Carney pointed out, based on the
allegations in the most recent federal
court complaint, that Fowlkes could
plausibly make such an argument
in this case, so the matter should be
remanded in order for the district court
to determine whether “futility” might
be a cognizable equitable defense to the
motion to dismiss “and, in this particular
case, whether futility, ‘reasonable
relatedness,’ or any other equitable
doctrine excuses Fowlkes’s failure to
exhaust his administrative remedies.”
But furthermore, the court was
willing to entertain the argument,
first raised on appeal but based on the
factual allegations from the complaint,
that Fowlkes might alternatively have a
federal claim under the National Labor
Relations Act. Because Fowlkes filed
his complaint pro se, “he is ‘entitled
to special solicitude,’ and we will read
his pleadings ‘to raise the strongest
arguments that they suggest,’” wrote
Carney, quoting from Triestman v.
Fed. Bureau of Prisons, 470 F.2d 471,
477 (2nd Cir. 2006). “The duty of fair
representation is a ‘statutory obligation’
under the NLRA, requiring a union
‘to serve the interests of all members
without hostility or discrimination. . .
to exercise its discretion with complete
good faith and honesty, and to avoid
arbitrary conduct,” quoting Vaca v.
Sipes, 386 U.S. 171, 177 (1967), in
which the Supreme Court had definitely
recognized that the Act’s conferral
of exclusive representative power on
unions implied a duty to exercise such
power fairly. The Supreme Court has
found that this duty applies to hiring
hall operations. “A union breaches its
duty of fair representation if its actions
with respect to a member are arbitrary,
discriminatory, or taken in bad faith,”
wrote the Supreme Court in Air Line
Pilots Ass’n, Int’l v. O’Neill, 499 U.S.
65, 67 (1991).
“Although Fowlkes’s amended pro
se complaint did not flag the NLRA,
we nonetheless are persuaded, with
the benefit of a counseled brief on
Fowlkes’s behalf, that Fowlkes has
stated a plausible claim for a breach
of the duty of fair representation,”
wrote Judge Carney. “In his amended
complaint, Fowlkes alleges that the
Local refused to refer him for work for
which he was qualified because of his
transgender status and in retaliation for
instituting legal proceedings against
the Local. Allegations that a union
abused its hiring hall procedures to
undermine a member’s employment
opportunities warrant particularly
close scrutiny when a union wields
special power as the administrator of
a hiring hall. . . Assuming, as we must,
that Fowlkes’s allegations are true,
the Local’s conduct was at the very
least arbitrary, if not discriminatory or
indicative of bad faith.” The defendants
urged a six months statute of limitations
as barring this claim, but Carney found
that Fowlkes had adequately alleged
discriminatory
referral
practices
occurring within the six-month period
before his pro se complaint was filed
with the court. She also rejected the
union’s argument that because Fowlkes
received some referrals, he could not
bring this claim, asserting that “the
mere fact that Fowlkes was referred for
Summer 2015 Lesbian / Gay Law Notes 294
some work during the relevant period
does not defeat a claim that he was
subjected to arbitrary, discriminatory,
or bad-faith treatment by a Local’s
overall distribution of work. A union
need not completely eliminate a
member’s employment opportunities
before the member may be entitled to
relief.” She also rejected the union’s
argument that it could defeat this claim
with a motion to dismiss based on an
argument that Fowlkes should have
exhausted internal union grievance
proceedings first, stating that “a cursory
invocation of an intra-union exhaustion
requirement in their appellate brief
certainly does not suffice to bar the
duty of fair representation claim from
proceeding past the pleadings stage.”
Having concluded that Fowlkes “has
stated a claim for breach of the duty
of fair representation against the
Local,” the court found alternative
grounds to “vacate the District Court’s
determination that Fowlkes stated
federal claims under only Title VII, and
we remand for further proceedings on
his duty of fair representation claim.”
Since the 2nd Circuit had identified
an alternative ground for federal
jurisdiction, it was also appropriate to
have the district court reconsider its
decision to dismiss the supplementary
state and local law discrimination
claims. “Because we have now
concluded that (1) Fowlkes’s failure
to exhaust administrative remedies
did not deprive the District Court of
jurisdiction over his Title VII claims,
and (2) Fowlkes has stated a claim
under the NLRA for breach of the duty
of fair representation, we vacate the
dismissal of Fowlkes’s pendent stateand city-law claims to allow the District
Court to reconsider on remand whether
exercising supplemental jurisdiction
is appropriate given our conclusions
regarding his federal claims.”
If the defendants don’t offer a decent
settlement in response to this decision,
they are missing a good opportunity to
avoid lengthy and expensive litigation,
since the panel clearly signaled its
view that Fowlkes’s allegations, if
proven, would provide multiple grounds
for liability by the union. The other
members of the 2nd Circuit panel were
Circuit Judges Pierre Leval and Denny
Chin. ■
Disability Discrimination Action
by HIV+ Woman Ticketed by Police
Officer Will Continue
I
n Jones v. Lacey, 2015 WL 3579282
(E.D. Mich., June 5, 2015), an HIVpositive plaintiff partially survived a
motion for summary judgement on her
claim of discrimination under the ADA
when a police officer admitted he issued
her a citation because of her delay in
revealing to him she was diagnosed
with HIV. U.S. District Judge Laurie
J. Michelson found that this admission
was sufficient to ground a disability
discrimination claim under the ADA.
Shalandra Jones was diagnosed with
HIV in 2001, is treated with Atripla
once a day and has a medical marijuana
prescription. In order to cease the
them that he was “not worried about a
dime bag” so Jones admitted that there
was a bag of marijuana in the car but
no other contraband. As P.O Lacey
was searching Jones’s’ purse he came
across some medications, to which
Jones responded “I’m HIV Positive.”
P.O. Lacey replied; “Okay. That’s
probably something you want to tell a
cop if they pull you out of a car. I’m
here going through her purse, and she’s
got earrings and shit I’m touching, and I
don’t want to catch anything,” and then
continued telling them that he works a
lot in the East End of Dearborn, where
he deals with plenty of crackheads and
U.S. District Judge Laurie J. Michelson found
that the admission was sufficient to ground
a disability discrimination claim under the
ADA.
rumors spreading throughout her
neighborhood and to stop her children
from bearing ridicule on her behalf,
she made a flyer with her picture on it,
and plastered it on every gas station and
liquor store in her town, inviting people
to come hear how she contracted HIV.
Jones also wanted to dispel the stigma
that people with HIV are drug addicts
or prostitutes. Ultimately, about 200
people showed up. After this talk, Jones
was offered a position at Voices of
Detroit Initiative, which is a nonprofit
healthcare-related organization.
On August 3, 2013, Jones and her
boyfriend (now husband) were driving
in Dearborn when they were stopped
by Dearborn Police Officer David
Lacey because their left brake light
was out. On approaching the vehicle,
P.O. Lacey claims to have noticed a
strong smell of marijuana. Lacey told
295 Lesbian / Gay Law Notes Summer 2015
heroin addicts…telling them he doesn’t
“want that shit.” P.O. Lacey, after only
writing them a “fix-it ticket,” stated,
“Honestly, if it wasn’t for that (her
status) I don’t think I would have wrote
anybody for anything, but that kind of
really aggravated me, you know what
I mean. . .You notice I walked back
and got my gloves out and put them
on, because I don’t, you know, want
to come into contact with anything at
all.” Jones testified that the incident
reminded her of how she was treated
when she was first diagnosed with HIV:
“It ruined me. It crushed me. It made
me start all over.”
After the traffic stop, Jones’s
family friend contacted a reporter,
Todd Heywood, who requested all the
information available from the traffic
stop under Michigan’s Freedom of
Information Act. Heywood published
the dashcam video on Youtube,
and POZ, a site for HIV-positive
people. After the matter attracted
much attention, the Dearborn Police
Department issued Lacey a written
reprimand, and P.O Lacey received 10
days unpaid suspension.
Jones filed this case on Jan. 27, 2014,
asserting violation of her constitutional
right to privacy by Lacey under 42
U.S.C. § 1983, Title II of the Americans
with Disabilities Act, and Michigan
privacy law. She alleged that Lacey
violated her constitutional rights
under the Fourth and Fourteenth
Amendments, her rights under the
ADA, and her Michigan statutory right
to privacy in her HIV status. Against
the City of Dearborn she asserted a
Monell failure-to-train claim.
Plaintiff alleged that P.O. Lacey’s
actions during the traffic stop violated
her “fundamental right to privacy as to
the disclosure of a private individual’s
HIV positive status” and her “right to
be free from unreasonable searches
and/or seizures.” In her Response to the
summary judgment motion, however,
Jones acknowledged that she “does not
seek relief under the 4th Amendment
for unreasonable search and seizure,
so issues of probable cause do not
apply,” so the Court granted summary
judgment for the defense on this issue.
Jones claimed her right to privacy
was violated because the City granted
Heywood’s FOIA request to release
the dashcam footage without redacting
her admission of her HIV status. Lacey
defended on the basis of only one
qualified-immunity prong: he said that
there was no constitutional violation.
The court agreed and assumed, along
with defendant’s motion, that there is
a constitutionally-protected privacy
interest in a private individual’s HIV
status. (See Moore v. Prevo, 379 F.
App’x 425, 428 (6th Cir.2010) (“We
join our sister circuits in finding
that, as a matter of law, inmates have
a Fourteenth Amendment privacy
interest in guarding against disclosure
of sensitive medical information from
other inmates subject to legitimate
penological interests.”). But see Doe
v. Wigginton, 21 F.3d 733, 740 (6th
Cir.1994) (dismissing a prisoner’s
constitutional privacy claim against a
guard who viewed the prisoner’s HIV
test results because “the Constitution
does not encompass a general right to
nondisclosure of private information”).
Defendants argued that Jones cannot
assert an informational privacy claim
because Jones’s community talk
regarding her HIV status and her HIV
activism had already placed her HIV
status in the public domain. The court
addressed these questions, relying
on various case precedent, and held
that Jones’ HIV status was already
information in the public realm by
the time the Department released the
dashcam footage due to her making
her HIV status public on her own and
therefore, there was no informational
privacy violation.
Jones also asserted that the
Dearborn Police Department has a
practice or custom of failing to “prevent
constitutional and ADA violations on
the part of its police officers,” however,
Jones failed to show that there were
any prior instances of unconstitutional
conduct by Dearborn police officers, or
that the Department was aware of any
such incidents. Jones did in fact establish
that there was at least a triable issue of
fact as to whether a “single violation of
federal rights” under the ADA occurred,
however, the court also held that merely
pointing to the shortcomings in P.O
Lacey’s interaction with Jones on the
date in question will not serve to carry
Jones’ burden on summary judgment
on the issue of deliberate indifference,
so the court granted defendants’ motion
for summary judgement on this point.
Jones also asserted that Lacey
violated her rights under Title II of the
Americans with Disabilities Act, 42
U.S.C. § 12132, relying on the Title II
Retaliation and Coercion provision.
Defendants asserted that “the mere
classification of Plaintiff as a member
of a disabled class does not constitute
a protected act under this section of the
ADA.” Given that Plaintiff did not assert
that she made a charge or participated
in a proceeding or otherwise exercised
her rights under Title II of the ADA,
Defendants argued that her retaliation
and coercion claims must be dismissed.
The court agreed with Defendants
because Jones did not cite to evidence
showing that she “opposed any act
or practice made unlawful by this
chapter...” and the mere fact that Jones
fell within a protected class under the
ADA does not constitute a protected
activity under the ADA.
Further, Jones asserted that Lacey
discriminated against her based on her
HIV status. The Defendants did not
dispute that Jones fell within the ADA’s
anti-discrimination protections due to
her HIV status, but they argued that
Jones could not make out a prima facie
case of discrimination, that P.O. Lacey’s
actions were protected by qualified
immunity, and that Lacey did not issue
her a ticket “solely by reason” of her
disability. Given Lewis v. Humboldt
Acquisition Corp., 681 F.3d 312, 317
(6th Cir.2012), where the Sixth Circuit
explicitly overruled the use of the
“sole-cause” standard in ADA claims,
making the standard a “but-for” cause,
the court found the standard relied on
by Defendants in this case was too
high, and found that HIV was the sole
reason Jones received the ticket. When
Jones revealed her HIV status, P.O
Lacey became agitated, and rather than
“letting them go on their merry way,”
he admitted, “Honestly, if it wasn’t for
that, I don’t think I would have wrote
anybody for anything, but that kind of
really aggravated me, you know what
I mean. . .” Lacey’s own comments
also directly established that Jones’s
HIV status was a “but-for” cause of
his decision to issue the citation. Jones
met her summary-judgment burden
to show that she received a citation
solely because of her HIV status, so
the motion for summary judgment
on Jones’ ADA discrimination claim
against Lacey was denied.
Ultimately, the court found that
Officer Lacey’s statements in the video
transcript could give rise to a finding of
ADA discrimination, and granted and
denied, in part, defendant’s motion for
summary judgement. – Anthony Sears
Anthony Sears studies at New York
Law School (’16).
Summer 2015 Lesbian / Gay Law Notes 296
Divided Texas Supreme Court Evades Deciding Gay
Divorce Issue
W
ith a ruling on same-sex
marriage from the United
States Supreme Court just days
away, the Texas Supreme Court finally
acted on June 19, 2015, on a pair of
appeals argued nineteen months earlier
in November 2013, holding in State v.
Naylor, 2015 Tex. LEXIS 581, 2015 WL
3852284, that the state’s attorney general
did not have standing to appeal an Austin
trial judge’s order granting a judgment
“intended to be a substitute for a valid and
subsisting divorce” to a lesbian couple
who had married in Massachusetts, and
granting a motion to dismiss an appeal
in In re Marriage of J.B. and H.B., in
which the Texas Court of Appeals in
Dallas had ruled in 2010 that Texas
courts lack jurisdiction to rule on divorce
petitions from same-sex couples married
elsewhere. The court’s opinion in Naylor
by Justice Jeffrey V. Brown was joined by
four other members of the court, one of
whom also penned a concurring opinion.
One member filed a dissenting opinion
for himself and three others, arguing
against the ruling on standing. One of the
dissenters filed an additional dissenting
opinion, arguing at length that the Texas
ban on performing or recognizing samesex marriages does not violate the 14th
Amendment. One member did not
participate in the case. The opinion may
be primarily of historical interest – as an
example of judicial timidity – in light of
the Supreme Court’s subsequent ruling in
Obergefell v. Hodges, under which Texas
undoubtedly will have to recognize
same-sex marriages contracted out-ofstate for purposes of its divorce laws.
The motion to dismiss the J.B. and
H.B. appeal was actually filed by James
Scheske, who represented the party
seeking an uncontested divorce. The two
men married in Massachusetts in 2006
and moved to Texas in 2008. Shortly
after moving to Texas they ceased to live
together, and J.B. filed a petition in Dallas
County seeking a property division and
that his last name be changed back to his
original name as part of a divorce decree.
The state intervened and argued that the
court had no jurisdiction to decide the
case, but the trial judge, Tena Callahan,
issued a ruling on October 1, 2009,
holding that the Texas ban on same-sex
marriage was unconstitutional and that
she could decide the case. The state
appealed that ruling, and the Texas Court
of Appeals in Dallas ruled on August 31,
2010, that Judge Callahan was wrong.
See 326 S.W.3d 654. An appeal to the
Texas Supreme Court followed, and the
case was argued, after much delay, in
November 2013. But H.B. subsequently
died, and Scheske filed an uncontested
motion to dismiss the case, since his
client’s marriage had been terminated by
death so a divorce decree was no longer
needed. The court granted that motion
on June 19 without explanation, but one
of the judges noted in his concurring
opinion in Naylor that J.B.’s appeal was
moot as a result of the death of one of
the parties.
Angelique Naylor and Sabina Daly,
Texas residents, went to Massachusetts
to marry in 2004. Naylor filed a divorce
petition in Travis County a few years
later. The women had a child and were
operating a business together, so, as
Justice Brown explained, “Naylor hoped
to obtain a judgment addressing their
respective rights, some of which they
had already settled in a suit affecting
the parent-child relationship.” Although
lawyers from the attorney general’s
office were aware of the case and
were actively monitoring its progress,
they didn’t formally try to intervene
until after the trial judge issued his
bench ruling incorporating the parties’
settlement agreement into a judgment,
which the judge explained “is intended
to dispose of all economic issues and
liabilities as between the parties whether
they are divorced or not.” The following
day, the state petitioned to intervene “to
oppose the Original Petition for Divorce
and to defend the constitutionality of
Texas and federal laws that limit divorce
actions to persons of the opposite sex
who are married to one another.” The
trial judge rejected this petition as
too late, and the Court of Appeals in
Austin agreed, 330 S.W.3d 434 (2011).
An appeal to the Texas Supreme Court
followed, and it was consolidated with
the J.B. appeal and argued on the same
day, November 5, 2013.
297 Lesbian / Gay Law Notes Summer 2015
There was widespread speculation
that the Texas Supreme Court, observing
all the marriage equality litigation
going on in Texas and elsewhere in the
wake of the U.S. Supreme Court’s U.S.
v. Windsor ruling, had decided not to
rule on these appeals until the U.S.
Supreme Court settled the constitutional
questions around same-sex marriage one
way or the other, so the Texas court’s
June 19 actions caught many by surprise.
Writing for the majority of the court,
Justice Brown agreed with the Court of
Appeals that the state lacked standing to
appeal the trial court’s judgment. “Texas
courts allow post-judgment intervention
only upon careful consideration of any
prejudice the prospective Intervenor
might suffer if intervention is denied,
any prejudice the existing parties
will suffer as a consequence of
untimely intervention, and any other
circumstances that may militate either
for or against the determination,” he
wrote. In this case, by implication, those
considerations weighed against ordering
intervention. Although Justice Brown
left it unsaid, it seemed clear that the
majority of the court saw little reason to
litigate the underlying issue in this case
when the U.S. Supreme Court was on the
verge of ruling. He devoted most of his
opinion to a close analysis of Texas laws
governing post-judgment intervention,
and almost none to the underlying
question whether same-sex couples can
get divorces in Texas, merely stating
general agreement with Judge Devine’s
analysis described below.
In a concurring opinion, Justice
Jeffrey S. Boyd explained further the
underlying rationale for dismissing the
appeal. “I write separately to emphasize
a point on which everyone agrees:
the State of Texas is not bound by the
divorce decree at issue in this case.” He
continued, “The State lacks standing
to appeal because it was not a party, it
shared no privity or interest with any
party, and the trial court’s judgment is
not binding on it. . . As a non-party who
is not bound by the judgment, the State
has no obligation to give any effect to
the trial court’s divorce decree. In fact,
it may be, as the State contends, that
our laws prohibit the State and all of its
agencies and political subdivisions from
giving any effect to the decree.” Since
the state did not recognize the marriage
in the first place, and had been taking
the position all along in both cases that
such out of state same-sex marriages
are considered “void” in Texas, the
decree was of no consequence to the
state. Judge Boyd’s opinion overlooks
the plain fact that the trial judge had not
even necessarily considered this to be a
divorce decree, but rather a “judgment”
incorporating a settlement agreement
reached by the parties. Judge Boyd
did comment that the dismissal of the
J.B. appeal as moot “leaves the Dallas
court’s opinion as the only currently
existing Texas law” on the issue whether
same-sex couples married elsewhere can
get a divorce in Texas, and that ruling, of
course, was negative.
Justice Don R. Willett’s dissent
argued strongly that the court should have
allowed the State to intervene because
of the importance of the question.
Justice John P. Devine’s dissent, quite
lengthy, plunged into the constitutional
merits and argued that the Texas ban
on recognizing same-sex marriages
from other jurisdictions did not violate
the 14th Amendment. In addition to
relying on Section 2 of the Defense of
Marriage Act, the provision that was left
untouched by the U.S. Supreme Court
in U.S. v. Windsor, which provides that
states are not constitutionally required
to recognize same-sex marriages from
other states, he argued that Texas had
good policy justifications for refusing
to allow same-sex couples to marry and
treating out-of-state same-sex marriages
as void in Texas.
Ignorant comments by the governor
and attorney general in response to
the Naylor ruling led to misleading
media reports suggesting that the
Texas Supreme Court had “upheld” a
same-sex divorce sought by Naylor,
but clearly the court had done no such
thing, merely holding that it was itself
without jurisdiction to rule on the state’s
argument that the trial court lacked
jurisdiction.
Ultimately, these actions by the Texas
Supreme Court could be of only passing
interest – except for civil procedure
fans – after the U.S. Supreme Court’s
ruling in Obergefell v. Hodges. ■
North Carolina Legislature Overrides
Veto of Statute Allowing Religious
Objectors to “Recuse” from SameSex Marriages
O
n June 11, the North Carolina
House voted 69-41 to override
Governor Pat McCrory’s veto
of Senate Bill 2, which provides a
mechanism for magistrates and registers
of deeds to avoid having to perform
marriages or to issue marriage licenses
when their religious beliefs would be
offended. The Senate had previously
voted 32-16 to override. McCrory
premised his veto on the proposition
that public officials take an oath of office
obligating them to perform their duties,
and nobody should be exempted from
complying with their oath of office. The
legislature disagreed.
The measure adds a new Section 515.5 to Chapter 51 of the N.C. General
Statutes. It states that “Every magistrate
has the right to recuse from performing
all lawful marriages under this Chapter
based upon any sincerely held religious
objection.” The recusal must be made
in writing by notice to the chief district
judge, and will be in effect for at least
six months, during which the magistrate
may not perform any weddings. “The
chief district judge shall ensure that
all individuals issued a marriage
license seeking to be married before a
magistrate may marry.” Similarly, the
provision states that “Every assistant
register of deeds and deputy register of
deeds has the right to recuse from issuing
all lawful marriage licenses under
this Chapter based upon any sincerely
held religious objections.” Again, the
objecting employee must issue a written
notice that is to be in effect for at least
six months, during which time they
can’t issue any licenses to anybody,
and the register for that county “shall
ensure for all applicants for marriage
licenses to be issued a license upon
satisfaction of the requirements as set
forth in Article 2 of this Chapter.” The
measure also provides that in case all the
magistrates in a particular jurisdiction
seek to recuse, the chief judge has to
make arrangements to have a magistrate
available to perform weddings. It
protects recusing individuals from any
liability or disciplinary action under
the various statutes governing the
performance of their duties.
Although this measure was clearly
inspired by religious objections to samesex marriages, it could on its face apply
to a wide variety of religiously-based
objections that magistrates or registers
might have to particular marriages.
One wonders whether any will recuse
from performing interracial marriages,
noting that when the constitutionality of
state bans on interracial marriages was
being litigated during the 1940s through
the 1960s, states raised religiously-based
objections to such marriages. Also,
could a magistrate who disapproves of
marriages between persons of different
religions recuse from performing such
marriages? The legislature makes this
a high-stakes game, by requiring that
recusing magistrates be disqualified
from performing all marriages during
a period of recusal. One wonders
whether such a magistrate might be
docked some of their pay if they are
disqualified from performing one of the
important functions of their job, since
the government is going to have to pay
somebody else to perform the function?
As the statute requires that
alternative arrangements be made so
that no qualified couple is deprived of
a license or the performance of a civil
marriage ceremony by a magistrate,
the question arises whether anybody
would have Article III standing to
challenge the statute in federal court as
unconstitutional. It appears on its face
to raise serious Establishment Clause
issues, since it authorizes religiouslybased recusal but does not authorize to
recuse on non-religious grounds. This
clearly favors religion. Early reports
indicated that only about a dozen
magistrates had filed their intention to
cease performing marriages, out of the
hundreds of magistrates in the state. ■
Summer 2015 Lesbian / Gay Law Notes 298
Arkansas Trial Court Orders State Recognition of
“Window Period” Marriages
A
n Arkansas trial judge ordered the
state on June 9 to recognize and
extend all rights and privileges
of marriage to more than 500 same-sex
couples who married during May 2014
while the state sought a stay of a trial
judge’s order striking down Arkansas’s
same-sex marriage ban.
On May 9, 2014, Arkansas Circuit
Judge Chris Piazza ruled in Wright
v. State of Arkansas, 60CV-13-2662,
that the state’s ban on same-sex
marriage was unconstitutional, granting
summary judgment to the plaintiffs, and
specifically holding unconstitutional
Amendment 83 (the Arkansas marriage
amendment) and Act 144 of 1997 (the
statute defining marriage in Arkansas as
between a man and a woman). While the
state sought a stay from the Arkansas
Supreme Court, same-sex couples
began to obtain marriage licenses and
get married pursuant to Judge Piazza’s
decision.
Counsel for plaintiffs then brought to
the judge’s attention that his order did not
specifically mention all of the relevant
statutes, and on May 15 he sent a letter
to all counsel advising them that he was
filing a new order clarifying the May 9
opinion and making clear that Act 146 of
1997, which specifically forbids issuing
marriage licenses to or recognizing the
marriages of same-sex couples, is also
unconstitutional. This new order was
issued nunc pro tunc, meaning that it
was intended to relate back to the May 9
decision, in order to protect the reliance
interests of those who had married after
the May 9 decision was announced. On
May 16, 2014, the Arkansas Supreme
Court stayed Judge Piazza’s decision
pending appeal. The appeal was argued
later in 2014, but changes in membership
of the Arkansas Supreme Court after the
argument led to a period of delay and
confusion in figuring out which judges
should participate in deciding the appeal.
Ultimately this confusion – apparently
to a large extent manufactured by some
members of the court to avoid ruling
on the merits, according to a public
letter issued by Justice Jim Hannah,
who recused himself from participating
in a ruling by the court on delaying
consideration – may ultimately delay
things until after the U.S. Supreme
Court issues its decision in Obergefell
v. Hodges, obviating the need for the
timorous Arkansas supreme court
justices to have to rule in this case. Also,
during 2014 a federal district court
in Arkansas issued a similar decision
striking down the state’s marriage ban,
that was immediately stayed pending
appeal, and the U.S. Court of Appeals
for the 8th Circuit put the appeal “on
hold” pending the Supreme Court’s
ruling in Obergefell.
During the May 9-May 16 “window
period” before Judge Piazza’s order was
stayed, hundreds of same-sex couples
married in Arkansas. However, the state
refused to recognize those marriages
as valid. This prompted a new lawsuit
on behalf of two same-sex couples who
married on May 12, but who were being
denied the right to file joint tax returns
and, in one case, to enroll a spouse in a
state employee health insurance benefit
program. The state’s argument was
that these marriages were invalid ab
initio because Judge Piazza lacked the
power to make his clarifying opinion
retroactive. According to the state, since
Judge Piazza’s order was stayed, Act 146
remained in effect, precluding the state
from recognizing these marriages.
On June 9, 2015, Circuit Judge
Wendell Lee Griffen decisively rejected
the state’s argument in Frazier-Henson
v. Walther, No. CV-15-569 (Arkansas,
Pulaski Co. Cir. Ct.). Judge Griffen
found that Rule 60 of the Arkansas
Rules of Civil Procedure specifically
authorizes judges to “correct errors or
mistakes” or “to prevent the miscarriage
of justice” by modifying judgments
that they have issued, including “errors
therein arising from oversight or
omission.” It was clear in this case that
Judge Piazza’s omission of Act 146 from
his original opinion was an oversight, as
reflected in the overall opinion granting
summary judgment to the plaintiffs and
holding unconstitutional the state’s ban
299 Lesbian / Gay Law Notes Summer 2015
on same-sex marriage. Further, Judge
Griffen opined that it would constitute
a miscarriage of justice not to accord
recognition to the marriages contracted
during the window period.
Judge Griffen used harsh language
to characterize the position of
defendant Larry Walther, Director of
the Arkansas Department of Finance
and Administration. “With shameless
disrespect for fundamental fairness
and equality, Director Walther insists
on treating the marriages of same-sex
couples who received marriage licenses
between May 9 and May 15 as ‘void
from inception as a matter of law’.
Meanwhile, Director Walther asserts that
‘heterosexual marriages performed in
the State of Arkansas between May 10,
2014 and May 16, 2014 are valid’. This
Court categorically rejects Director
Walther’s manifestly inaccurate and
tortured misinterpretation of Rule 60 of
the Arkansas Rules of Civil Procedure.
If the position Director Walther asserts
would not produce a ‘miscarriage of
justice’ as that term is understood
within the meaning of Rule 60(a), the
words ‘miscarriage’ and ‘Justice’ have
no meaning.” The court ordered Walther
to recognize all of the marriages
contracted during the window period, to
allow joint tax filings by those couples,
and to allow same-sex spouses married
during the window period to enroll in
the state’s employee benefits program.
Associated Press reported that
Arkansas Attorney General Leslie
Rutledge did not immediately state
whether she would seek a stay of
Griffen’s ruling. She asserted, “These
marriages do not fall within the state’s
definition of marriage as between one
man and one woman. I am evaluating
the ruling and will determine the best
path forward to protect the state’s
interest.”
Judge Griffen was among the
trial judges who officiated same-sex
marriages during the window period,
according to the AP report.
Arkansas attorney Cheryl K. Maples
represents the plaintiffs. ■
Federal Judge Allows Trial on Transgender Inmate’s
Claim of Assaults by Sheriff’s Deputies, but Not on
Civil Rights Conspiracy
U
nited States District Judge Jesus
G. Bernal adopted the Report
and Recommendation [R &
R] of United States Magistrate Judge
Victor B. Kenton that granted summary
judgment for defendants on most of
transgender plaintiff Ramon Murillo’s
claims, including conspiracy to violate
her civil rights, but permitted her claims
of assault to proceed to trial in Murillo
v. Parkinson, 2015 WL 3791450 (C.D.
Calif., June 17, 2015).
Murillo, a state prisoner, was in the
San Luis Obispo County Jail for 17 days
in 2011 to attend a civil malpractice
trial she brought against a prison
doctor. During this time, she alleges
that defendants (San Luis Obispo
County, its sheriff, four deputies and
a sergeant) violated her civil rights by
denying her access to legal resources,
depriving her of food, exercise,
showers, and clean clothing, placing
her in administrative segregation,
subjecting her to humiliating stripsearches, discriminating against her
“based on her transgender orientation”,
and assaulting her twice while uttering
transphobic slurs.
Reporting the lengthy and detailed R
& R is beyond the scope of this article.
Judge Kenton found either that Murillo’s
constitutional rights were not violated
or that the defendants were entitled to
qualified immunity because the rights
were not clearly established under
Pearson v. Callahan, 555 U.S. 223,
231 (2009); on Murillo’s claims about
denial of access to courts and of food,
exercise, showers, and clean clothing –
because she attended the malpractice
trial, which was not about core criminal
or civil rights issues – as protected by
Lewis v. Casey, 518 U.S. 343, 346 (1996)
and Bounds v. Smith, 430 U.S. 817, 828
(1977), and the other deprivations were
intermittent and sporadic during her
brief stay at the jail. Judge Kenton found
no basis to sustain jury claims against the
county or its sheriff officially because
there were inadequate allegations of
policy or practice against them under
Monell v. Department of Social Service
of the City of New York, 436 U.S. 658,
690 (1978). Murillo also failed to show
personal involvement of the sheriff in
his individual capacity.
Judge Kenton found that the jail had
merely continued the administrative
segregation under which Murillo was
classified by the state following her
transgender identification in 1999 and
that this brief continuation did not
violate her rights under Wilkinson v.
Austin, 545 U.S. 209, 221–23 (2005). He
also found that the strip searches were
reasonable under Turner v. Safley, 482
orientation discrimination, or its possible
application to transgender plaintiffs.
He does not even frame the rational
basis claims: for example, could a jail
reasonably provide three meals a day
and laundry to straight inmates but only
one meal a day and no clean clothes to
transgender inmates? See also, Glenn v.
Brumby, 663 F.3d 1312, 1315-1320 (11th
Cir. 2011) (applying Equal Protection
analysis to transgender government
employee’s termination, finding that
“discrimination against a transgender
individual
because
of
gendernonconformity is sex discrimination”).
That the R & R balkanized Murillo’s
Judge Kenton found either that Murillo’s
constitutional rights were not violated or that
the defendants were entitled to qualified
immunity because the rights were not clearly
established.
U.S. 78, 89 (1897), and Bell v. Wolfish,
441 U .S. 520, 540 (1979), without
discussing Murillo’s claim that she was
stripped “naked in the middle of the hall”
or the reasonableness of the conditions
of strip searches recognized in Florence
v. Board of Chosen Freeholders, 132 S.
Ct. 1510, 1523 (2012).
On Equal Protection, Judge Kenton
ruled that Murillo was not a member
of a “protected” class, and therefore
discrimination was subject only to
a rational basis test under Village of
Willowbrook v. Olech, 528 U.S. 562,
564 (2000). He cited two district court
cases from 2012, but he did not refer to
the Ninth Circuit decision in SmithKline
Beecham Corporation v. Abbott
Laboratories, 740 F.3d 471, 474 (9th
Cir. 2014), which applied intermediate
scrutiny to claims involving sexual
claims is evident when the readers gets
to the assaults. Murillo alleges that
she was twice assaulted without any
provocation when returning from court
by deputies who called her a “faggot,
queer with tits” and a “rat-ass faggot”
and pushed her, smacked her in the face
and head, punched her, and kicked her,
leaving her bleeding and injured. The
conduct on these occasions included
refusing her food and public stripping.
The denials by the deputies and sergeant
created a jury issue under Hudson v.
McMillian, 503 U.S. 1, 7 (1992), and
Whitley v. Albers, 475 U.S. 312, 320–21
(1986). [Editor’s note: see Kingsley v.
Hendrickson, 576 U.S. ___, No. 146368 (June 22, 2015), in this issue of
Law Notes, for developments on the
legal test for excessive use of force under
Hudson and Whitley. Murillo’s case
Summer 2015 Lesbian / Gay Law Notes 300
differs from Kingsley, in two respects:
here, defendants deny any use of force,
while in Kingsley they argued that the
force was necessary and reasonable;
and Murillo is a convicted prisoner
in a jail on a civil writ, not a pre-trial
detainee protected by the Fourteenth
Amendment’s Due Process Clause.]
Finally, the R & R falls apart when
this discussion turns to conspiracy
under 42 U.S.C. § 1985, and Judge
Kenton conflates the section’s two
subparts: § 1985(3) and § 1985(2).
Murillo’s allegations establish the
core elements of a conspiracy by two
or more individuals to use excessive
force against her under the Eighth
Amendment. The questions are whether
there is evidence that: (1) the conspiracy
had racial or class-based animus under
§ 1985(3); or (2) the conspiracy sought
to interfere with access to justice under
§ 1985(2), which does not require such
animus under Kush v. Rutledge, 460
U.S. 719, 720 (1983).
In light of SmithKline Beecham
v. Abbott Laboratories in the Ninth
Circuit, which would be precedent for
this district court, the slurs to which
Murillo was subjected should have
been sufficient evidence of animus
based on sexual orientation under the
Equal Protection Clause to allow a §
1985(3) conspiracy claim to go to a jury.
Evidence that the beatings occurred
upon returning from court should
have allowed a jury to consider a §
1985(2) interference with justice claim,
regardless of animus. Instead, Judge
Kenton combines the two subparts of
§ 1985, confuses the separate elements
and case law, ignores the context, and
holds: “Plaintiff has failed to plead
any facts that would suggest that
Defendants acted with some sort of
discriminatory animus.”
Conspiracy law is important to LGBT
plaintiffs. For example, admissions of a
co-conspirator are subject to evidentiary
exceptions; and joint and several liability
attaches to each co-conspirator who
engages in an overt act in furtherance
of the conspiracy. The ability of LGBT
plaintiffs to present conspiracy claims
under either branch of § 1985 has
litigation consequences.
– William J. Rold
Boy Scouts of America May Reverse
Policy on Gay Adult Leaders
F
ifteen years ago, the Boy Scouts
of America (BSA) fought all the
way to the U.S. Supreme Court
to protect the organization’s right
to exclude gay people from adult
leadership positions for Boy Scout and
Cub Scout troops. They won that battle
by a 5-4 vote in Boy Scouts of America
v. Dale, 530 US 640 (2000), but they
really didn’t win the war, because there
was quite a bit of blowback from the
public, which tended to side with the
New Jersey Supreme Court decision
that was reversed by the Supreme
Court’s narrow ruling. Pressure on
various public sector organizations
(schools, police departments, etc.)
to drop sponsorship of Scout troops
became intense in some parts of the
country, and an existing trend of
declining enrollment in the Scouts
seemed to accelerate. Also, of course,
public attitudes about gay people were
going through a rapid evolution during
the period 2000-2015, responding to a
national conversation about same-sex
marriage that culminated in the June 26
ruling in Obergefell v. Hodges, which
was very much in sync with evolving
public opinion.
The Scouts saw the writing on
the wall a few years ago, and took a
halfway measure of voting to allow gay
youth to participate, while continuing to
maintain the ban on gay adult leaders.
But pressure on the organization
continued, and pro-gay Supreme Court
rulings in U.S. v. Windsor as well as
Obergefell undoubtedly contributed to
concern by the Scouts that ultimately
they might start to lose lawsuits under
public accommodation laws. On July 10
the Executive Committee of the BSA’s
National Board voted unanimously to
abandon the national policy against
allowing adults to be Scout leaders
and volunteers, instead approving a
policy against discrimination because
of sexual orientation. However, bowing
to the reality that a large number of
Scout troops are sponsored by religious
organizations, they also voted to
301 Lesbian / Gay Law Notes Summer 2015
preserve “local option” for such troops.
Thus, the policy being recommended
to the National Board when it meets on
July 27 is to prohibit sexual orientation
discrimination against gay adult leaders
and volunteers, but to allow local
Scout operations that are sponsored
by religious organizations to make
decisions consistent with their religious
beliefs. Whether this compromise
solution will work is anybody’s guess.
Meanwhile, it seemed likely that
a unanimous vote by the Executive
Committee would presage approval
by the National Board. It was
disappointing, however, that an
explanatory memorandum sent out
to the various regional and area
councils on July 13 attributed a major
motivation for this action to fear of
losing lawsuits rather than to wanting
to the do “the right thing” by refusing
to discriminate against gay people.
The BSA undoubtedly faces serious
problems in some parts of the country
where its exclusion of gay leaders is
popular or where a substantial number
of local operations are religiouslysponsored, so it sought to premise this
action as something that had to be done
for pragmatic reasons.
Major credit for both the earlier
decision to allow gay youth to
participate and the more recent
recommendation to allow gay adults
to participate is due to Dr. Robert M.
Gates, National President of BSA and
former U.S. Secretary of Defense.
Gates presided over the adoption and
implementation of the “Don’t Ask Don’t
Tell Repeal Act” passed by Congress in
2010 and implemented by the Defense
Department beginning in September
2011. That experience apparently armed
Gates with persuasive arguments to
lead the BSA into a reconsideration
of its policies. As such, he is probably
one of the best people to lead the
organization during what might be a
challenging implementation phase,
having implemented a similar policy on
a much broader scale in his prior job. ■
MARRIAGE EQUALITY
ALABAMA – A measure that would
have eliminated marriage licenses in
Alabama died in a House Committee on
June 5 as the legislative session came to
its end. The measure would have allowed
couples to register their marriage
contracts with the courts, and provided
that a “ceremonial” marriage might be
required, but as drafted was curiously
ambiguous about what would and would
not be required. The measure anticipated
a U.S. Supreme Court decision holding
that same-sex couples are entitled to
marry, and a determination by sponsors
of the legislation that their state not be
complicit in issuing licenses to samesex couples. al.com, June 5.
ARIZONA – The state’s defense of
former Governor Jan Brewer’s move to
end domestic partner benefits for state
employees eventually was mooted when
marriage equality arrived in Arizona
pursuant to a federal court decision last
year followed by a determination by
the government not to appeal, in light
of the 9th Circuit’s repeated reiteration
of support for marriage equality. But
that didn’t end the litigation entirely,
since plaintiffs’ counsel sought to be
paid. The state argued that no fees were
due, claiming the plaintiffs were not
prevailing parties as they had achieved
only interim injunctive relief before the
case became irrelevant, thus there was
never a final ruling on the merits as to
the constitutionality of the challenges
statute revoking the benefits. Judge
John W. Sedwick, who rendered the
marriage equality decision last year,
was not buying this argument. “The
Ninth Circuit has specifically held that
a plaintiff who wins a preliminary
injunction but does not litigate the case
to final judgment can nonetheless be
considered the prevailing party,” he
wrote. He noted that the 9th Circuit
had “summarily granted Plaintiffs’ fee
application for work done in relation to
Defendants’ appeal of the preliminary
injunction in this case. In doing so, the
Ninth Circuit necessarily concluded
that Plaintiffs are the prevailing party
and that the amount requested is
reasonable.” The amount requested
and awarded is $305,049.95 in fees and
$1,036.67 in costs. Plaintiffs’ fee goes
to Lambda Legal Defense Fund, which
has been involved in the case since the
revocation of benefits. Diaz v. Brewer,
2015 U.S. Dist. LEXIS 73355, 2015 WL
3555282 (D. Ariz., June 5, 2015).
ARKANSAS – A lawsuit was filed on
July 13 in Pulaski County Circuit Court
on behalf of three same-sex couples
against state health officials who had
refused to issue them birth certificates
for their children listing both parents.
The state continues to insist that only
a biological mother can be listed, and
that there needs to be an adoption
proceeding for the co-parent to get
listed. Two of the couples were married
out of state, the other in state days
after the Obergefell decision. All three
conceived their children through donor
insemination, and sought to apply the
usual presumption that a child born to a
married woman is the legal child of the
birth mother’s spouse. Cheryl Maples
represents the plaintiffs, arguing that the
refusal to change the birth certificates to
list both parents harms the children for
no good reason, and that these couples
should not have to expend resources and
time on adoption proceedings. Under
Obergefell, it is argued, they must
be treated the same as different-sex
married couples. SFGate.com, July 13.
GUAM – On June 5, Chief Judge
Frances Tydingco-Gatewood of the
U.S. District Court of Guam ruled in
Aguero v. Calvo that the U.S. territory
of Guam was obliged under the
federal constitution to allow samesex couples to marry. Ruling from
the bench and citing the 9th Circuit’s
decision in Latta v. Otter (as Guam is
assigned to the 9th Circuit), the judge
granted summary judgment to the
plaintiffs, making Guam the first U.S.
territory to have marriage equality.
The government quickly fell into line;
indeed, the main argument advanced
on behalf of the government during the
hearing that morning was that because
of a local statute the government could
not issue marriage licenses unless the
court ordered it to do so. The court
made its order effective with the
beginning of business on June 9, and
marriages started taking place on that
date. On June 8, the judge issued a brief
written opinion restating what she had
read from the bench on June 5: Aguero
v. Calvo, 2015 WL 3573989, 2015
U.S. Dist. LEXIS 74590 (D. Guam).
The plaintiffs, Kathleen Aguero and
Loretta Pangelinan, had attempted to
submit an application for a marriage
license on April 8, but were turned
down, even though Attorney General
Elizabeth
Barrett-Anderson
and
advised Governor Eddie Calvo that the
existing ban was unconstitutional and
that she would not defend it, leaving
the governor to retain outside counsel
for this purpose. Attorneys for the
plaintiffs included local practitioners
Bill Pesch, Mitch Thompson and Todd
Thompson. They received assistance
from Omar Gonzalez-Pagan, a staff
attorney at Lambda Legal. The
plaintiffs were waiting on line bright
and early to get their license. Lambda
Legal press advisory, June 5; AP
Worldstream, June 8.
IDAHO – In light of Obergefell v.
Hodges, the decision in Taylor v.
Brasuell, 2015 WL 4139470, 2015 U.S.
Dist. LEXIS 90034 (D. Idaho, July 9,
2015), seems obvious. Madelynn Lee
Taylor is a 74-year-old veteran of the
U.S. Navy. She married Jean Mixner in
a religious ceremony in 1995, and then
the women married again in a legal civil
ceremony in California in 2008. Mixner
passed away in 2012 and was cremated.
Taylor kept the ashes, intending that
Summer 2015 Lesbian / Gay Law Notes 302
MARRIAGE EQUALITY
when the time came she would be
cremated as well and they would be
buried together in a military cemetery.
In December 2013, Taylor went to the
Idaho State Veterans Cemetery in Boise
to make the arrangements and filed
an application. On June 4, 2014, she
received a letter from the Director of the
cemetery informing her that she could
be buried there, but not together with
her spouse, because the marriage was
not recognized under Idaho law. Taylor
filed suit on July 7, 2014, requesting
an injunction to compel the cemetery
to honor her request. A few months
later, the 9th Circuit ruled in Latta v.
Otter that Idaho’s recognition ban was
unconstitutional, on October 10, 2014,
the Supreme Court denied a motion for
stay pending appeal by Idaho, and on
October 28, 2014, the cemetery allowed
interment of Ms. Mixner’s ashes, having
concluded that Idaho’s recognition ban
was ended. The defendant in this case,
David Brasuell, administrator of the
cemetery, filed a motion to dismiss,
claiming that the case was moot since
Mixner’s ashes had been interred and
the Idaho Division of Veterans Services
had granted Taylor’s request. Taylor
responded with a motion for summary
judgment, asking the court to issue the
requested injunction, just to be sure that
her request to be buried with her spouse
would be honored. Idaho subsequently
filed a cert petition in Latta v. Otter,
which the Supreme Court held without
decision while the appeal in Obergefell
v. Hodges was pending. That petition
was denied on June 30, 2015, after the
Supreme Court had issued its ruling on
the merits in Obergefell. Meanwhile,
the cross-motions in this case had been
pending before U.S. Magistrate Judge
Ronald E. Bush, who evidently held up
on ruling until a decision was rendered
in Obergefell. The defendants pressed
their mootness argument in support of
dismissal, but Judge Bush came down
in favor of Taylor, issuing the requested
injunction. “There is no question but
that those on both sides of the argument
raised in the Latta and Obergefell cases
have firm and deeply-felt convictions
about the ‘rightness’ of their particular
position,” he wrote. “Further, the
landscape left by Latta and Obergefell
is still very warm to the touch. However,
the remaining issues in this case must be
decided against the judicial finish line of
those cases, not against the arguments
raised along the way. In that space, this
Court is not persuaded that Veterans
Services, via Mr. Brasuell, has borne its
‘formidable’ burden of establishing that
it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably
be expected to recur.’ Concentrated
Phosphate, 393 U.S. at 203. Perhaps, even
without an enforceable order ensuring
that Ms. Tayler and Ms. Mixner will
be permanently interred together at the
Idaho Veterans Cemetery, they would
nonetheless be so laid in perpetuity. But
notwithstanding the rulings in Latta and
Obergefell, a future director at Veterans
Services or the Idaho State Veterans
Cemetery (or some other applicable state
actor) may come to view his or her role
as being responsible for deciding what
is/is not constitutional under the law on
matters that may impact Ms. Taylor’s
claimed right to be interred there with
her same-sex spouse. It is not unusual for
legal precedent – even Supreme Court
decisions – to be tested in such ways
over time to ‘settle the pond’ on novel
and evolving issues. Dismissal on the
grounds of mootness would be justified
only if this possibility was categorically
foreclosed or, said another way, if it
was absolutely clear that Ms. Taylor
no longer had any need of the judicial
protection that she seeks. The record
now before the Court does not support
such a conclusion. For this separate
reason, Mr. Brasuell’s Motion to Dismiss
is denied.” The court then concluded
that, in light of Latta and Obergefell,
it was clear that Taylor was entitled to
summary judgment and the issuance
of the injunction she was seeking. In
a footnote, the judge explained the
particular predicament that might arise
303 Lesbian / Gay Law Notes Summer 2015
if the case were dismissed as moot and
then after Taylor’s death the cemetery’s
administration might change their mind
and deny burial. At that point, it would
be questionable whether her executor
or administer would have standing to
bring an action under Section 1983,
since only living persons have legal and
constitutional rights to assert. The judge
concluded that Taylor was entitled to the
peace of mind of obtaining injunctive
relief now.
MASSACHUSETTS – Gay & Lesbian
Advocates & Defenders announced the
filing of a class action against Walmart
on July 14 in the U.S. District Court in
Boston, charging a violation of Title
VII’s ban on sex discrimination on behalf
of Walmart employees with same-sex
spouses who had been denied the right
to enroll for spousal employee benefits
before January 1, 2014, even though
same-sex couples working for Walmart
have been marrying in Massachusetts
since May 2004 and in an increasing
number of other states leading up
to January 1, 2014, when evidently
Walmart finally made up its mind to
recognize the marriages. The suit also
alleges violation of the Equal Pay Act
(sex discrimination in compensation)
and the Massachusetts Fair Employment
Practices Law.
Lead plaintiff
Jaqueline Cote, a Walmart employee in
Massachusetts, was not allowed to add
her spouse, Diana Smithson, whom she
married in May 2004, to her health plan
until January 1, 2014, which resulted in
$250,000 in medical debt when Diana
developed cancer. The putative class
will be represented by attorneys from
GLAD and the Washington Lawyers’
Committee for Civil Rights and Urban
Affairs. Since the case is challenging
a corporate policy, Cote v. Walmart
should not encounter the problems
that have prevented nationwide
class certification in cases charging
Walmart with sex discrimination in its
assignment and promotion practices.
MARRIAGE / CIVIL LITIGATION
The case hopes to build on several
U.S. district court rulings around the
country that have denied motions to
dismiss Title VII sex discrimination
claims that were asserted by gay or
lesbian plaintiffs. The complaint makes
the common-sense argument that Cote
suffered intentional sex discrimination,
as she would have been able to put her
spouse on the benefits plan if they were
a different sex couple; thus the denial
was explicitly because of her sex and
the sex of her spouse. Walmart allowed
same-sex spouses to enroll beginning on
January 1, 2014, so the damage claims
asserted by this lawsuit are retrospective
in nature.
TEXAS – The Texas Legislature
adjourned its regular session, not
expected to return until 2017, as it meets
only in alternate years. The state’s LGBT
community breathed a sigh of relief,
because apart from a resolution and
some relatively harmless minor matters,
the body did not debate and enact a slew
of anti-gay measures, most notably one
that would have required local officials
to refrain from issuing marriage licenses
or officiating weddings for same-sex
couples. Although some right-wing
pundits called for a special session of
the legislature to consider and pass the
anti-gay bills, Governor Greg Abbott
said on June 1 that he did not anticipate
calling a special session, stating, “They
got their job done on time and don’t
require any overtime. Texas Tribune,
June 8. The one substantive measure that
they did pass, which is a prime example
of legislation for dummies, is the socalled Pastor Protection Act (Senate
Bill 2065), which goes into effect on
Sept. 1, excusing religious authorities
and organizations from performing any
marriages to which they might have
religious objections, allowing them to
refuse to provide facilities and services
in connection with such marriages, and
shielding those organizations from any
potential adverse consequences for such
refusals. Since the 1st Amendment’s
Free Exercise Clause already shields
religious authorities from any such
obligations, the legislation is totally
unnecessary. Arguments to the contrary
by such as Lt. Gov. Dan Patrick, who
had stated that pastors might be sent
to jail for refusing to perform samesex marriages, were arrant nonsense,
suggesting that Patrick – and those who
argued that this statute is necessary – are
ignorant of the law. The only part of the
law that might have been debatable dealt
with protection religious organizations
from the loss of tax exemptions if they
refused to perform such ceremonies or
afford such facilities or services, but
even that threat seemed highly unlikely.
Perhaps somebody should take them at
their word and sue a pastor who refuses
to perform such a wedding or make
their church building available for such
a ceremony prior to Sept. 1. Just to see if
this bill was really necessary. . . Although
Texas has no state law banning sexual
orientation discrimination, several of its
major cities do, so this might provide an
interesting test of the clash of rights.
CIVIL LITIGATION NOTES
CALIFORNIA – California Superior
Court Judge Raymond M. Cadei
awarded declaratory relief to Attorney
General Kamala Harris, who sought
to avoid circulating a proposed
ballot initiative called the “Sodomy
Suppression Act,” which had been
proposed by one Matt McLaughlin,
an attorney of questionable taste. The
measure purported to authorize people
to kill gays and lesbians by “bullets to the
head” or “any other convenient method.”
Normally, the Attorney General’s
office does not get to screen proposed
initiatives for content, but Harris balked
at writing a ballot title and summary
and authorizing the circulation of
petitions to put the proposal on the
ballot. Instead, she filed a declaratory
judgement against McLaughlin arguing
that the measure should be disqualified.
After having filed his proposal and
achieved whatever notoriety he was
seeking, McLaughlin seems to have
abandoned it, since he defaulted on
responding to Harris’s lawsuit. In an
order signed on June 22, 2015, Judge
Cadei wrote that Harris was entitled
to the relief she requested, stating that
the proposed initiative “is patently
unconstitutional on its face,” that
preparing a title and summary would be
“inappropriate, waste public resources,
generate unnecessary divisions among
the public, and tend to mislead the
electorate,” so Cadei held that Harris
“is relieved of any obligation to issue
a title and summary” for this proposed
statute. Harris v. McLaughlin, Case
No. 34-2015-00176006 (Cal. Super. Ct.,
Sacramento Co.).
CALIFORNIA – In Harris v.
McLaughlin, California Superior Court
Judge Raymond M. Cadel ruled that
Attorney General Kamala Harris did
not have to approve a proposed initiative
submitted by Matt McLaughlin titled
the Sodomite Suppression Act for
petitioning to be placed on the ballot.
The judge stated, in a brief order, that
“Any preparation and official issuance
of a circulating title and summary
for the Act by the Attorney General
would be inappropriate, waste public
resources,
generate
unnecessary
divisions among the public, and tend to
mislead the electorate.” He stated that
Harris is “relieved of any obligation
to issue a title and summary for the
Act.” McLaughlin’s proposal would
authorize Californians to execute gay
people on sight.
CALIFORNIA – In Johnston v. City of
L.A., 2015 Cal. App. Unpub. LEXIS
4816, 2015 WL 4148341 (Cal. 2nd Dist.
Ct. App., July 9, 2015), the court upheld
the discharge of a Los Angeles police
Summer 2015 Lesbian / Gay Law Notes 304
CIVIL LITIGATION
officer who was dismissed after an
investigation of a complaint by a lesbian
citizen about Johnston’s treatment of her
during a traffic stop of a car in which she
was a passenger. A footnote in the court’s
decision summarizes Johnston’s denial
of the complaint against him:” Johnston
denied being rude or discourteous,
knowing of either Newman’s or Boone’s
sexual orientation, referring to Newman
as Boone’s wife, asking whether Boone
had an attitude, stating that Boone
did not ‘feel like a man,’ referencing
Boone’s sexual orientation, or stating
that she was harassing him. Neither
Boone’s nor Newman’s race or sexual
orientation were a factor in his decisions
to make the traffic stop or issue the
citation.” Ultimately police officials
concluded that Johnston had falsified
his written report about the traffic stop,
and that was the official reason for his
discharge. The court of appeal noted the
trial court’s finding that Johnston was
informed of the nature of the complaint
against him before he prepared his
written report on the traffic stop.
CALIFORNIA – U.S. District Judge
Yvonne Gonzalez Rogers granted
summary judgment to defendants
in Fidge v. Lake County Sheriff’s
Department, 2015 WL 3919819 (N.D.
Calif., June 25, 2015), finding that a
man who hung out in a shopping mall
coffee shop lecturing people against
same-sex marriage did not have any
valid constitutional or tort claims
against mall employees or owners or
police officers arising out of his arrest
and expulsion from the premises. Judge
Rogers recounts at length the story
of Ronald Fidge’s apparent obsession
with convincing people – especially
unaccompanied children – that samesex marriage is unnatural, a proposition
he illustrated using nuts and bolts
“to suggest that two nuts or two bolts
could not form a proper union.” He
was repeatedly told that parents were
complaining to the mall management
about his approaching children and
talking to them about same-sex
marriage, and finally the proprietors
got fed up after he brushed off repeated
warnings to desist from harassing
customers. In the ensuing confrontation
involving a police officer and a mall
managerial employee, Fidge resisted
arrest and was physically subdued by the
police officer using pepper spray. (The
officer had threatened Fidge with a taser,
and Fidge reportedly urged the officer
to use it.) The court rejected Fidge’s
argument that his 4th Amendment rights
were violated, rejected the idea that
Fidge’s speech enjoyed constitutional
protection in this context (and avoided
deciding whether the action of the mall
owners constituted “state action” for
constitutional purposes. The court also
rejected Fidge’s claim for false arrest or
imprisonment.
CALIFORNIA – The 5th District Court
of Appeal affirmed a decision by Kings
County Superior Court Judge Donna
L. Tarter to reject a motion by William
Siegel to dismiss a defamation claim
against him by Ed Martin. Martin v.
Siegel, 2015 Cal. App. Unpub. LEXIS
4768, 2015 WL 4099840 (July 7, 2015).
Siegel is the mayor of Lemoore, and
Martin, assistant principal at Lemoore
Union High School, is a former mayor
of the city who contributes articles
to a local newspaper in which he has
been very critical of Siegel. Siegel
allegedly sent an email in May 2013 to
Lemoore Union High School District
Superintendent Debbie Muro requesting
that Martin be discharged. He allegedly
followed up with a September 1, 2013,
email to Martin that was also sent
to several other people, in which he
asserted that people in the community
“speak of your homosexual tendencies
and your infatuation with young boys”
and insinuates that Martin had tried to
kill himself (“self termination”). Siegel
filed his motion under the SLAPP
statute, alleging that Martin’s lawsuit
305 Lesbian / Gay Law Notes Summer 2015
was filed for the purpose of chilling
Siegel’s protected speech on issues of
public concern. Upholding denial of
the motion, the court found that the
defamation cause of action did not arise
from protected activity, as the court
found that the email which is at the
center of the case did not involve matters
of public interest. “None of the evidence
presented by appellant supports the claim
that the referenced e-mail statements
(homosexual tendencies, infatuation
with young boys and self termination)
pertain to issues involving the public
interest or a public issue. Evidence that
respondent wrote many articles crucial
of appellant’s performance as Mayor of
Lemoore does not give appellant legal
immunity to defame respondent about
personal matters. The e-mail’s content
did not concern appellant’s performance
as Mayor nor did it relate to any article
respondent wrote about appellant.
Instead, they appear to be personal
comments directed at respondent
rather than addressing any public
issue.” The court also rejected Siegel’s
argument that the e-mail are “protected
speech because the credibility and
trustworthiness of respondent is a
public concern,” observing that Siegel
never explains how “statements about
homosexual tendencies or a past
suicide attempt affects credibility
or trustworthiness.” Thus, Siegel’s
apparent attempt to escalate a feud
with Martin in order to get Martin
fired seems to have backfired, with the
court of appeal giving the green light to
Martin’s defamation action.
CALIFORNIA – The National Center for
Lesbian Rights announced on July 13
that the U.S. Department of Education’s
Office for Civil Rights and the Justice
Department had approved a newlyannounced policy by Arcadia Unified
School District governing transgender
students’ rights as being in compliance
with the school’s obligation under Title
IX of the Education Amendments of
CIVIL LITIGATION
1972, 20 U.S.C. sections 1681-1688. This
should settle litigation brought by NCLR
on behalf of a transgender Arcadia
student who had been denied facilities
access consistent with the student’s
gender identity. Under the policy,
students’ gender identity as determined
by the student will be respected, school
personnel will respect privacy rights
so as not to reveal, imply, or refer to a
student’s gender identity or expression,
school personnel will use appropriate
names and pronouns consistent with a
student’s gender identity, and access to
all facilities (including restrooms and
locker rooms) will be in accord with a
student’s gender identity. The policy was
developed in response to the complaint
NCR had filed in its lawsuit on behalf
of the anonymous student. Interestingly,
a petition is circulating in California
seeking an initiative that would restrict
facilities access by transgender students
based on biological sex as identified at
birth, but it seems clear that under the
Supremacy Clause federal statutory
rights would take priority over a state
initiative statute. On the other hand, at
this point there is not a definitive final
appellate ruling firmly establishing
that denial of access to such facilities
violates Title IX, so a potential epic
litigation battle may be looming on this
issue if such an initiative is placed on the
ballot and passes.
CALIFORNIA – The California 2nd
District Court of Appeal ruled in La
Count v. Patina Restaurant Group,
2015 WL 3814298 (June 18, 2015), that
the company’s grievance arbitration
procedure was both procedurally and
substantively unconscionable, so an
employee’s lawsuit alleging, inter alia,
sexual orientation discrimination in
violation of state law, was not subject
to arbitration. The opinion, which is
not officially published, unfortunately,
goes into considerable detail about
the procedural and substantive faults.
Perhaps most significantly, at the time
of hiring the employee was not given
enough time to be able to acquaint
himself with the procedure that he was
ostensibly agreeing to be bound by,
the procedure was buried in a lengthy
manual and was not made conspicuous,
the employee was not given his own
copy of the manual, and the company
reserved the right to modify the
procedure at any time unilaterally.
As to substance, the procedure was
very one-sided. While purporting
to be binding on both employee and
employer, the employee’s rights were
heavily circumscribed and restricted,
with tight time limits and multiple steps
for resolution of grievances, while the
employer faced no such restrictions. The
procedure was devised to give every
advantage in the process to the employer.
Under the circumstances, the court held
that the procedure was not binding on
the employee.
CALIFORNIA – The California 2nd
District Court of Appeal ruled in
Conner v. Cedars-Sinai Medical Center,
2015 WL 3767970 (June 17, 2015), that
a hospital was not liable to a man for
failing to inform him of his HIV+ test
result. Mr. Conner was admitted to the
hospital after feeling “discomfort” and
“dizziness.” As part of the diagnostic
process he consented to an HIV test,
which came back negative. A few days
later, a second test using a different
technique was run and came back
positive. The lab communicated the test
result to the doctors who were treating
Conner, but nobody notified him, and he
didn’t learn that he had tested positive
for HIV until three years later, when he
returned to the hospital. Conner sued
the doctors and the hospital, asserting
negligence claims and seeking to hold
the hospital vicariously liable for the
failure of physicians to inform him. The
hospital moved for summary judgment,
successfully arguing that it had no duty
to the patient because “a hospital’s duty
of care is to transmit laboratory results
to the physician who ordered the test,”
and disclaiming any vicarious liability
for the failure of the patient’s doctor
to communicate the result to him. In
affirming this ruling, the court of appeal
pointed to prior California appellate
rulings that supported the hospital’s
argument about the limited duties of
hospitals in reporting test results. The
court also rejected Conner’s negligence
per se argument, which he premised on
statutes imposing a duty on hospitals
to report positive HIV tests to public
health authorities. The court found that
the statutes were not intended to benefit
patients, as they mandated reporting
only to public health authorities.
Furthermore, although Conner’s doctor
had admitting privileges at the hospital,
he was not an employee, so his failure to
notify Conner of the positive test result
could not be imputed to the hospital
under traditional respondeat superior
doctrine governing employer liability
for torts committed by employees in
the scope of their employment. The
court also rejected Conner’s argument
that the hospital was liable for
“negligent credentialing” of his doctor
or constructive fraud or concealment.
Some duty is a prerequisite to imposing
tort liability, and the court held that
under California precedents the hospital
had not violated any duties in connection
with this case.
DELAWARE – The Supreme Court
of Delaware affirmed the New Castle
County Family Court’s order slightly
modifying child visitation terms and
found that Charles Franklin, the father,
who was disputing the modification
sought by the ex-wife, Cassie Franklin,
had failed to provide evidence supporting
the allegation that the Family Court was
biased against Charles due to Charles’s
gender transition. Franklin v. Franklin,
2015 Del. LEXIS 305, 2015 WL 3885834
(June 22, 2015). Justice Randy J.
Holland wrote for the three-judge panel
of the court. In a footnote to the opinion,
Summer 2015 Lesbian / Gay Law Notes 306
CIVIL LITIGATION
he states: “The Court recognizes that
Father is a transgender woman, but we
use the term ‘Father’ for purposes of this
order because that is the term used by
the Family Court in its order. It also is
the term used by both parties to identify
Charles Franklin in their briefs on
appeal.” Cassie, who has sole custody of
their young daughter, sought to modify
visitation terms because the child was
beginning full-time kindergarten; she
alleged that Charles “had not provided
a consistent schedule for Ellen during
her preschool years” and this would be
disruptive of the school schedule. Both
parents represented themselves and
were the sole witnesses at the Family
Court hearing. The Family Court did
not grant Cassie the more extensive
modifications she was seeking, but
rather imposed a schedule that did not
reduce the total amount of Charles’s
visitation time but rearranged it to
accommodate the school schedule. The
court also noted the communications
difficulties experienced by the parents,
and testimony from both of them
“reflecting Ellen’s confusion about
Father’s gender transition, including an
incident where Ellen refused to take
medicine when she was sick because
she was afraid it would turn her into a
boy.” The Family Court decided that
it would be in Ellen’s best interests if
the parties obtained counseling for the
child, at Charles’s expense, to help her
understand the transition. In response
to Charles’s argument that the Family
Court was biased, the court pointed
out that Charles “failed to provide this
Court with a copy of the transcript of the
Family Court hearing in order to support
those claims. Without an adequate
record, the Court has no sufficient basis
to review Father’s challenge to any of
the Family Court’s factual findings or
credibility determinations.” The court
observed that the Family Court had
determined that “both parties were
adequate caregivers for Ellen, but they
had problems in communicating directly
and civilly with one another. The Family
Court ordered that Father’s visitation
with Ellen should be modified slightly
so that visitation periods would begin
on Wednesday each week to reduce any
confusion and that non-school pickups
and drop-offs would occur at the police
station. In almost all other respects, the
Family Court denied Mother’s petition
to modify visitation.” The court found
that “the allegation that the Family
Court’s decision reflects discrimination
against Father as a transgender person is
completely unsupported by the record.”
FLORIDA – U.S. District Judge James S.
Moody, Jr., granted summary judgment
to The College of Central Florida, which
was being sued by a lesbian professor
on a claim of sex discrimination in
violation of Title VII. Burrows v.
College of Central Florida, 2015 U.S.
Dist. LEXIS 90576 (M.D. Fla., July 13,
2015). Barbara Burrows was hired as
Vice President for Instructional Affairs
in July 2008 on an annual contract
subject to renewal at the College’s
discretion.
Burrows
subsequently
married her same-sex partner in Iowa.
She told some staff members about
the marriage, but not her boss, College
President Charles Dassance, although
she believed that he had overheard staff
talking about it. He alleges that although
he knew she was gay, he did not know
about her marriage. In any event,
in March 2011 Dassance informed
Burrows that he was not renewing
her contract as VPIA for the 2011-12
academic year, assertedly because he
had concluded in light of complaints
about her management style that things
were not working out. She was given
the option to resign, and she accepted
a transfer to a teaching position in the
math department. The result was a large
decrease in her salary, as the College
treated her as the equivalent of a new
hire and paid her consistent with what
it asserted was the appropriate salary
for a person of that rank. She alleged
that the non-renewal of her contract
307 Lesbian / Gay Law Notes Summer 2015
was discriminatory, as was the level of
pay she received in her new position.
She worked as a faculty member until
2013, receiving positive performance
reviews, but then for budgetary reasons
the College notified her that she was
being laid off in a reduction in force that
eliminated 17 vacant faculty positions
and resulted in laying off 11 faculty
members. She offered to teach courses
for which she had been scheduled for
the coming summer and fall terms as an
adjunct, but her offer was declined. The
court concluded that her discrimination
claim was really a sexual orientation
claim rather than a traditional sex
discrimination claim, and thus not
actionable under Title VII in the absence
of factual allegations that would support
a gender stereotyping theory. “Plaintiff’s
claim,” wrote Judge Moody, “although
cast as a claim for gender stereotype
discrimination, is merely a repackaged
claim for discrimination based on sexual
orientation, which is not cognizable
under Title VII or the FCRA [Florida
Civil Rights Act]. . . Plaintiff’s theory
of gender stereotyping is misplaced.
Generally, gender stereotyping is
concerned with characteristics ‘readily
demonstrable in the workplace,’
such as behaviors, mannerisms, and
appearances. Plaintiff’s relationship
with a woman was not a characteristic
readily demonstrable in the workplace,
and Plaintiff provides no other evidence
of discrimination based on her failure
to conform to a feminine stereotype.
Additionally, even assuming Plaintiff
could establish a prima facie case of
gender stereotype discrimination,
Plaintiff’s claim fails for the same
reasons as her claim for marital status
discrimination [under state law], i.e.,
Plaintiff failed to demonstrate that
Defendant’s proffered reason fro
setting her faculty salary was pretext
for gender stereotype discrimination.”
The court also found that the reduction
in force was not carried out to retaliate
or discriminate against Burrows.
Burrows is represented by Christopher
CIVIL LITIGATION
Wadsworth and Ronnie Guillen of
Wadsworth Huott LLP, Pompano
Beach, Florida.
INDIANA – Indiana legislators have
very odd ideas about appropriate
legislation under the 1st Amendment.
In addition to passing a Religious
Freedom Restoration Act that blew up
in their faces over the issue of stateauthorized
discrimination
against
LGBT people, they also recently passed
a law that bans registered sex offenders
from attending any church located on
the same property as a school. That
means many churches, since churches
frequently run pre-school and religious
school programs on their premises. The
ACLU of Indiana filed suit on July 1
in Elkhart County Superior Court on
behalf of two registered sex offenders
(“John Doe” plaintiffs), claiming the
protection of the RFRA against the
other statute, seeking an injunction
against prosecutors and sheriffs in Allen
and Elkhart Counties, arguing that they
should be entitled to attend the church
of their choice. A Republican legislator
criticized the lawsuit as a misuse of the
law, while a Democratic legislator who
had opposed the new RFRA asserted
that it was entirely on point. Journal
and Courier, July 3 [Lafayette, IN].
KENTUCKY – A gay discrimination
plaintiff won his motion to remand his
lawsuit to state court on the ground of
lack of federal diversity jurisdiction
in Wimsatt v. Kroger Co., 2015 U.S.
Dist. LEXIS 74134 (W.D. Ky., June 9,
2015), upon a finding by Senior U.S.
District Judge Charles R. Simpson,
III, that Steven Wimsatt had stated
“colorable” state-law claims against
individual co-defendants who were,
like him, residents of Kentucky, thus
defeating the requirement for complete
diversity in a case that did not assert
any federal claim. Wimsatt began
working for Kroger, a national grocery
chain, on Aug. 2, 2010, but has been on
permanent suspension since Aug. 1,
2014. He claims that his suspension
was due to a “scheme contrived by
Defendants – Kroger Co., Kroger
Limited Partnership, Kayla Adams,
Naomi Newton, and Jamie Goings – to
discriminate against him on the basis
of gender and retaliate against him for
engaging in protected activity.” He sued
in Nelson County Circuit Court alleging
a violation of the Kentucky Civil Rights
Act. Kroger removed the case to federal
court, asserting diversity jurisdiction,
and alleged that Wimsatt’s claims
against the non-diverse defendants
were “fraudulent” for the purpose of
preventing removal. To evaluate this
argument, the court had to determine
whether Wimsatt had asserted colorable
state law claims against the non-diverse
defendants. Kentucky’s Civil Rights
Act authorizes employment retaliation
claims against individuals as well as
against companies and, after a careful
analysis of Wimsatt’s allegations, the
court found that his factual allegations
were sufficient to ground such actions.
Simpson rejected Kroger’s argument
that this was a non-actionable sexual
orientation discrimination claim. “We
acknowledge that discrimination on the
basis of sexual orientation is, simply
put, a claim that is not cognizable under
the KCRA,” wrote Judge Simpson.
“And, indeed, Wimsatt references
his sexual orientation throughout the
Complaint. Yet, he explicitly accuses
the defendants of ‘sex discrimination’
and ‘discrimination on the basis of sex,’
not on any other basis. ‘Sex,’ used in this
sense, is [an] alternative way of saying
‘gender.’ Even federal courts use the
terms ‘sex’ and ‘gender’ interchangeably.
Hence, we are not surprised that
Wimsatt’s Complaint explains that
KRS 344 prohibits discrimination
on the basis of sex, which it does, and
then alleges that he was retaliated and
discriminated against ‘because of his
sex as a homosexual male.’ Never,
however, does he allege that he was
discriminated against ‘because of his
sexual orientation as a homosexual
male.’ Thus, regardless of how he tried
to dress them up, the operative words
in Plaintiff’s allegations are ‘because
of his sex as a [] male.’ And even if
we were to entertain the argument
that the Complaint is ambiguous as to
whether it alleges discrimination on the
basis of gender or sexual orientation,
the law directs us to resolve any
such ambiguity in Wimsatt’s favor,”
because, after all, the burden is on
the party seeking removal to establish
diversity. The court further noted that
Wimsatt’s
“conspiracy-to-retaliate
claim is, at most, tangentially related
to his discrimination claim,” premised
as it is on the defendants’ response to
his alleged protected activity, rather
than on his sexual orientation. Having
concluded that “there is a ‘colorable
basis’ for predicting that ‘state law might
impose liability upon’ the non-diverse
individual defendants for retaliation,
Judge Simpson found that the defendants
had failed to establish that the federal
court could assert jurisdiction over this
case based on diversity.
MAINE – A lesbian plaintiff who
was discharged just days after filing
a discrimination charge against her
employer under the Maine Human Rights
Act partially survived the employer’s
motion to dismiss in Adkins v. Atria
Senior Living, 2015 U.S. Dist. LEXIS
85392, 2015 WL 4041727 (D. Maine,
July 1, 2015). The Maine Human Rights
Act forbids, inter alia, sexual orientation
discrimination. Adkins had filed a
claim with the MHRC alleging such
discrimination as well as sex and race
discrimination, and she subsequently
filed a Title VII claim with the EEOC,
alleging sex and race discrimination and
retaliation. She missed by two days her
deadline for filing a lawsuit on the state
law claims, because she was waiting
for a right to sue letter from the EEOC
on the federal claims. District Judge
Summer 2015 Lesbian / Gay Law Notes 308
CIVIL LITIGATION
John A. Woodcock, Jr., granted the
employer’s motion to dismiss the state
law claims, finding that they were timebarred. “Ms. Adkins presents a hard
case because she missed the deadline by
only two days and she was represented
by counsel at the time,” he wrote.
“However, once the Court determines
that she had not only failed to file on a
timely basis but also that the three-day
extension under Rule 6 was unavailable
to her, the Court is required to apply the
law as the Maine legislature enacted it
and to conclude that Ms. Adkins has
failed to comply with the statute of
limitation in the MHRA.” Thus, the
court’s attention turned to Adkins’
Title VII allegations, as to which the
employer argued that this was really a
sexual orientation discrimination case
that was not actionable under Title VII.
Adkins tried to squeeze her allegations
into a gender stereotyping theory, but the
court found that her factual allegations
did not suffice for that. However,
the court concluded that her factual
allegations were sufficient to support a
more straightforward sex discrimination
claim, since she had alleged specific
instances when she claimed she was
discriminated against because she was
a woman, apart from any issue about
her sexual orientation. Thus, the court
refused to dismiss her Title VII sex
discrimination claim. Furthermore, the
court found that Adkins could maintain
her retaliation claim. The employer
argued that the retaliation claim really
related back to her time-barred sexual
orientation claim under the Maine
HRA, and thus was not actionable
under Title VII. But, Judge Woodcock
pointed out, “Ms. Adkins complained
to human resources about, among other
things, race-based discrimination, filed
a charge with the MHRC, and informed
her manager of the complaint she
filed with the MHRC; four days after
notifying her manager of the charge,
Atria terminated her employment.”
The court asserted that “her MHRC
charge is protected activity,” citing 1st
Circuit precedent on point that filing
a discrimination charge with a state
agency can be a prerequisite for a Title
VII retaliation claim, “and the parties
do not dispute that the termination
of her employment is an adverse job
action. Four days is sufficiently close to
generate an inference that the two events
were causally related. To the extent that
Ms. Adkins complained about sexual
orientation discrimination, it was not the
only conduct she complained about. The
Court need go no further; Ms. Adkins’
retaliation claim survives a motion to
dismiss, and the Court will allow the
parties to flesh out the contents of Ms.
Adkins’ complaints to her manager and
to human resources during discovery.”
Adkins is represented by Danielle M.
Campbell and Guy D. Loranger, Law
Office of Guy D. Loranger, Old Orchard
Beach, ME.
MARYLAND – In Finkle v. Howard
County, 2015 U.S. Dist. LEXIS 76144,
2015 WL 3744336 (D. Md., June 12,
2015), U.S. Magistrate Judge Stephanie
A. Gallagher granted summary
judgment to Howard County on a Title
VII sex discrimination brought by a
transgender woman who was not selected
to be a member of the initial class of a
new Volunteer Mounted Patrol (VMP)
being formed for the county police
department. Finkle, well qualified as
an equestrian, is a retired police officer,
and had been very involved with a police
lieutenant who was in charge of setting
up this new program. In the course of
the process of screening applicants, the
selecting body adopted a preference
against hiring retired police officers,
based on their view that the role of the
VMP would not be confrontational but
rather ceremonial and informational,
and they were concerned that retired
police officers would be likely to want
to intervene to make arrests and engage
in other police-type actions. There were
about 75 applicants, and Finkle survived
all stages of the selection process until
309 Lesbian / Gay Law Notes Summer 2015
it came down to the interviews of the
finalists for the twelve-member unit.
At that point, she was limited for three
reasons that were articulated: her status
as a retired police officer, her conduct
during the interview (which suggested
to the selection panel that she would
be inclined to be confrontational and
interventionist and thus not “fit in”
to their concept for the unit), and the
response time she indicated she would
need to report for assignments, which
was assertedly much longer than they
considered desirable. When she was
informed that she was not selected but
would be placed on a waiting list for the
future, she expressed dissatisfaction,
and when she learned who had been
selected she came to believe that some
of the reasons stated for not selecting her
were bogus. She filed a discrimination
charge with the state civil rights agency
and ultimately received a right-tosue letter from the EEOC, claiming
sex discrimination because of her
gender identity. The court accepted
the proposition, more frequently being
accepted now by federal trial courts, that
gender identity discrimination can be
actionable under Title VII, but concluded
that she had failed to allege a plausible
discrimination claim, either through
direct or circumstantial evidence. Only
one of the selection committee members
was aware that was transgender, and
there was no evidence that her gender
identity ever came up in the discussions
of the selection panel, or was relied upon
in deciding not to select her. The court
found no basis in the circumstances
for inferring discriminatory intent,
and found that the stated reasons for
selecting others in preference to her
were not pretexts for discrimination.
She tried to make an argument that
disqualifying retired police officers was
a form of occupational discrimination
that would be actionable under the state’s
discrimination law, but the court found
that she had not filed a complaint to that
effect with the state agency, failing to
exhaust administrative remedies.
CIVIL LITIGATION
MASSACHUSETTS – U.S. District
Judge Talwani denied a motion
to reconsider a prior dismissal of
a defamation claim brought pro
se by Donal Coleman against the
Commonwealth of Massachusetts, the
Andover Police Chief, and Starbucks.
Coleman v. Commonwealth, 2015
WL 4094336 (D. Mass., July 7, 2015).
According to the brief summary given
by the court, Coleman, who asserted
in this motion but not in his original
complaint that he is gay, alleged that
an individual (not a defendant in this
case) had called him a derogatory term
in Starbucks, that a different individual
(not a defendant in this case) “banged”
on the window of a Brueger’s Bagels
and called him a derogatory term, and
that three Andover police officers, none
of whom are named as defendants in
this case, had failed to investigate these
incidents when Coleman sought their
help. In the original ruling, the court
found that there was no federal question
or diversity jurisdiction and dismissed,
finding no reason to assert jurisdiction
over purely state law questions. On the
motion for reconsideration, Coleman
asserted a federal equal protection claim.
The court pointed out that Starbucks was
not a state actor, that the Commonwealth
enjoyed immunity, and that there was
no allegation that the police chief had
“directly violated his rights” or “had
condoned or acquiesced to a pattern
of civil rights violations” that might
support supervisory liability. Although
Coleman’s motion for reconsideration
did allege “new” facts not alleged in
the original complaint, there was no
showing as to why they couldn’t have
been alleged then.
MASSACHUSETTS – U.S. District
Judge Indira Talwani denied a
summary judgment motion filed by
two police officers who are being sued
on constitutional and statutory privacy
claims by Joseph Amato, a gay man
who they arrested on Christmas Eve
2012. Amato v. Barone, 2015 U.S. Dist.
LEXIS 70376 (D. Mass., June 1, 2015).
Christian Peters went to a neighbor’s
house to call the police about a “domestic
disturbance” with his partner, Joseph
Amato. When Police Officers Michael
Barone and Thomas Steele showed up
at the apartment, Peters was still at the
neighbors’ house. Amato was at the time
clad only in a sweatshirt and a blanket
wrapped around his body. The police
officers placed Amato under arrest
and handcuffed him as a stood in the
doorway of an office in the apartment.
As he was being cuffed, the blanket fell
to the floor, leaving him naked from
the waist down, genitals exposed. He
asked the police officers to allow him
to put on a pair of pants sitting nearby
on the floor. Sergeant Steele responded,
“Shut the fuck up” and “Merry Fucking
Christmas.” Officer Barone picked up
the pants, but wouldn’t allow Amato to
put them on. Instead, they paraded him
in that state out of his apartment from his
residence to the police car, and they did
not allow him to put on pants until after
they reached the police station where he
was booked. Amato did not resist arrest
and cooperated with the police officers
at all times. He was exposed to public
view on a cold Massachusetts night
while being marched from the house to
the police car. Amato did not contest the
constitutionality of his arrest, but only
the manner in which it was carried out.
Judge Talwani found that the officers
were not entitled to summary judgment
on Amato’s claim that the arrest was
carried out in an unreasonable manner,
noting that no safety concern would
justify refusing to let Amato put on
his pants once the police officers had
a chance to check the pockets for
contraband or weapons. “Even a brief
period of nudity may be unreasonable if
not supported by countervailing security
interests,” wrote the judge, “and this
unreasonableness is compounded where
a nude arrestee is exposed to both public
view and to the extreme weather typical
of Massachusetts in late December.”
The court rejected a qualified immunity
argument, finding that there was clear
Supreme Court precedent dealing with
a right to be free from unjustified nudity
during a seizure of the person. She also
rejected the summary judgment motion
directed to Amato’s claims under the
Massachusetts Civil Rights Act and
the Massachusetts Privacy Act. “A jury
could find that Amato’s forced exposure
was not reasonably justified by any
countervailing interest,” she concluded.
MICHIGAN – U.S. District Judge
Patrick J. Duggan issued an order
enforcing an arbitration award finding
that Spirit Airlines had violated its
collective bargaining obligations in a
dispute concerning domestic partner
health benefits. Spirit Airlines, Inc. v.
Association of Flight Attendants, 2015
WL 3771330 (E.D. Mich., June 17, 2015).
Under the parties’ collective bargaining
agreement, the arbitration board
consisted of a management designee,
a union designee, and a neutral party.
The AFA designated a senior flight
attendant to be its member of the panel.
Before the matter was concluded, the
flight attendant retired from active duty,
and an issue was raised whether she
could continue on the arbitration panel,
inasmuch as the collective agreement
specified that the management and union
members of the panel be employees of
the airline. The neutral member took it
upon herself to rule that the retired flight
attendant could continue to participate
on the panel, as she was employed when
the panel was constituted to hear the
case. Ultimately, the flight attendant
member voted together with the neutral
member to grant the union’s grievance.
The court rejected the union’s argument
that every intermediate procedural issue
to be decided during a case must be by
a majority vote of the panel, finding that
the collective agreement’s majority vote
rule applied only to the final decision
on the merits by the panel. The issue
before the panel had been whether the
Summer 2015 Lesbian / Gay Law Notes 310
CIVIL LITIGATION
company’s policy of treating married
flight attendants and their spouses
more favorably than partnered flight
attendants by providing more healthcare
options to the married attendants
violated the contract’s prohibition on
marital status discrimination, a question
the panel answered in the affirmative.
“Spirit does not argue that the Board
acted outside its authority in resolving
this dispute,” wrote Judge Duggan, “nor
does Spirit allege fraud, dishonesty,
or a conflict of interest. Therefore, if
the award is to be vacated, Spirit must
show that the majority was not arguably
construing or applying the contract in
resolving legal or factual disputes in the
case. Spirit has not satisfied its burden.”
Duggan asserted, in conclusion, “Spirit’s
conclusory argument that the award
does not draw its essence from the CBA
is unpersuasive.” He granted the union’s
motion for summary judgement and
ordered enforcement of the arbitration
award.
MINNESOTA – The Justice Department
has filed suit on behalf of the EEOC
against Deluxe Financial Services, a
Minnesota-based company, alleging
that Deluxe had violated Title VII’s ban
on sex discrimination by its actions in
response to a longtime employee who
had recently begun to present as a
woman. The complaint alleges that the
company would not allow the employee
who now is known as Britney Austin to
use the women’s restroom, and had taken
to no action in response to harassing
comments by co-workers, who had
engaged in name-calling and referring
to Austin as “he”. The case is part of an
initiative by the EEOC to establish that
Title VII’s ban on sex discrimination
extends
to
protect
transgender
employees who are transitioning on the
job. National Law Review, June 17.
MISSOURI – The Joplin Globe (July 15)
reported that the insurance company
and attorneys representing the Carl
Junction School District had settled a
federal wrongful death lawsuit filed
by Mika and Jessica Nugent, parents of
14-year-old Luke who had committed
suicide in response to extended bullying
at school. The lawsuit, Nugent v.
Cook, asserted claims of violation of
Title IX, denial of due process, and
tort claims of wrongful death and
negligence. Luke Nugent had come
out as bisexual while attending junior
high school, and immediately because
the subject of ridicule, harassment,
torment and bullying, according to the
complaint. Luke suffered homophobic
slurs, physical threats, and theft and
destruction of his personal property.
The named defendants included in the
superintendent of schools, the junior
high school principal, the bus driver, and
several other school employees. Under
the settlement agreement filed with
the U.S. District Court for the Western
District of Missouri, the case would be
dismissed and the insurance company
would pay $300,000 to the plaintiffs.
The school district’s attorney stated
that the decision to settle was made by
the insurance company, not the school
district, as the insurance policy gave
the company the right to settle claims.
The school responded to the incident by
putting in place new training programs
and an online reporting system for
bullying complaints.
NEW JERSEY – It seemed a bit
anticlimactic after all the pretrial
rulings, but following a dramatic threeweek trial that received substantial press
coverage, a New Jersey Superior Court
jury in Hudson County unanimously
ruled in Ferguson v. JONAH that the
defendant, an organization whose name
is an acronym for Jews Offering New
Alternatives for Healing that advertised
services for “curing” homosexuality,
had violated New Jersey consumer fraud
laws. The jury held the organization,
its founder and an affiliated counselor
311 Lesbian / Gay Law Notes Summer 2015
liable for advertising misrepresentations
and
unconscionable
commercial
practices on June 25. The trial lasted
three weeks. The jury awarded
damages totaling $24,500, which will
be allocated in various amounts among
the five plaintiffs based on the evidence
concerning the harms they suffered and
subsequent costs they incurred from
being exposed to the so-called therapy.
A detailed report about the trial and jury
verdict was published in the New Jersey
Law Journal and republished in the
New York Law Journal and the National
Law Journal.
NEW YORK – In what may have been
the first New York court opinion to cite
Obergefell v. Hodges, a Manhattan trial
judge ruled on July 2 that a purported
marriage between an Orthodox
Jewish woman and a man was invalid.
Devorah H. v. Steven S., 2015 N.Y. Slip
Op. 25228 (Sup. Ct., N.Y. Co.). Devorah
and Steven (an attorney) never obtained
a marriage license. They were living
together with their young children from
prior marriages in a tiny apartment,
and sought help from their rabbi in
finding more suitable housing when
a complaint by Devorah’s ex-husband
to the Administration for Children’s
Services triggered an investigation of
the children’s living conditions. The
rabbi found them a larger apartment
and suggested they should marry
before moving there. He then officiated
at an abbreviated religious marriage
ceremony for them on the spot in his
office, partially completing a standard
form certificate (which he didn’t sign)
and urging them to go to City Hall
and get a license. They didn’t follow
up, however. Ten years later Devorah
filed for divorce and Steven moved to
dismiss, contending they were never
validly married. She relied on NY
Domestic Relations Law Sec. 25, which
provides that a “properly solemnized”
marriage is valid despite the lack of a
marriage license. This is an ancient
CIVIL LITIGATION
statute, most likely passed in order
to validate religious marriages in
the large immigrant community in
New York when it was adopted in the
early years of the 20th century. After
recounting the extensive testimony of
the parties and the rabbi on the question
whether this marriage was “properly
solemnized,” the court concluded
that the marriage was invalid, noting
particularly the rabbi’s testimony that
he had repeatedly urged the parties to
“go to City Hall” to get a license, and
that they had to know that they would
need a new solemnization after a
license was issued. Steven testified that
after they left the rabbi’s office he had
torn up the copy of the certificate that
the rabbi gave them. Supreme Court
Justice Matthew F. Cooper’s conclusion,
invoking Obergefell, is interesting: “In
the over 100 years since the enactment
of DRL Sec. 25, the way citizens marry
in New York has changed immeasurably.
While at one time the wedding
ceremony was the central element of
the process, that is no longer the case;
church weddings are more and more
the exception rather than the rule, and
the new wage of marriage ceremonies
would be almost unrecognizable to
earlier generations. What is key to the
process is the marriage license itself.
This is not only true for New York, but
for the entire nation. After all, when the
United States Supreme Court issued
its historic decision in Obergefell v.
Hodges (576 U.S. – [2015]) making
the right to same-sex marriage the law
of the land, it did so by decreeing that
‘States are required by the Constitution
to issue licenses to same-sex couples’
(emphasis added). DRL Sec. 25, in its
present form, serves no useful function
in today’s world. Conceivably, if the
statute was amended to allow couples
who justifiably believed they were
legally married with a valid marriage
license to protect the marriage from the
claim that the license was improperly
executed or otherwise defective, that
would certainly serve the public interest.
But as it exists now, the statute allows for
the wholesale disregard of New York’s
licensing requirements – requirements
that, as we have seen, play a vital role
in insuring that marriages are legally
valid. Until DLR Sec. 25 is repealed
or reformed, courts will be forced to
grapple with situations like this, where
the parties fully understood that they did
not legally marry but one side seeks to
abuse the statute to attain the financial
remedies only available to litigants who
are married to one another. In light of
the foregoing, it must be concluded
that plaintiff cannot show that she and
defendant are married, and therefore
has failed to prove an essential element
of her prima facie case for divorce.”
The court evidently did not consider
the couples’ ten years of cohabitation
after the quick marriage ceremony to
be a basis for finding Devorah eligible
to seek a formal divorce and disposition
of assets. Devorah H. is represented by
Eurydice A. Kelley, Steven S. by Jeffrey
S. Kofsky.
OHIO – In Currie v. Cleveland
Metropolitan School District, 2015 U.S.
Dist. LEXIS 87311, 2015 WL 4080159
(N.D. Ohio, July 6, 2015), what might
have been a plausible employment
discrimination was dismissed due to
pleading deficiencies by the pro se
plaintiff, Brian Currie, who had been
an English teacher in the Cleveland
public school system. Currie alleged
that he was subjected to sexual
harassment by Regional Superintendent
Luther Johnson. He wrote in an EEOC
complaint, “Expletives and threats
concerning sexual orientation were
used against me in my classroom at
John Marshall Ninth-Grade Academy.”
Currie alleges that due to psychological
and emotional trauma he suffered as
a result of the harassment, he did not
return to work for the remainder of
the school year. He filed an internal
complaint with school authorities,
which was investigated and rejected,
and a grievance with his union that
went nowhere. He says the district’s
investigator asked Currie about his
sexual orientation. He claims that when
he returned to school for the fall semester,
he was not reinstated to his position as
an English teacher, for which the school
was using a long-term substitute, and
he was quickly discharged for “absence
abuse.” He sought to bring claims under
Title VII (which he misidentified in
his complaint) and the Americans with
Disabilities Act, although he did not
explicitly identify in his complaint what
disability he had, apparently thinking
that his reference to the psychological
and emotional trauma he suffered due
to the alleged harassment would be
sufficient. In any event, U.S. District
Judge Patricia A. Gaughan granted the
motion to dismiss, finding that claims
could not be asserted under the federal
civil rights laws against the individual
named defendants, since only the
employer, as such could be sued, and
that the complaint failed to state a
claim under either Title VII or the ADA
against the school district. In particular,
applying 6th Circuit precedent and
concluding that Currie was really
trying to assert a sexual orientation
discrimination claim, she accepted the
school district’s argument that this claim
was not actionable under Title VII. She
found that Currie’s allegation “only
involve discrimination based on sexual
orientation,” rejecting his argument that
because he alleged in his complaint
that he was discriminated because of
sex (male), he had met the requirement
for coverage under the statute. Judge
Gaughan did not expressly analyze
the question whether a retaliatory
discharge for filing his complaints
with the district and the union should
be found actionable based on his belief
that the harassment he was protesting
was unlawful, merely asserting that
because the controversy involved sexual
orientation, the retaliation claim also
was not actionable. No mention is made
of Cleveland’s ordinance forbidding
Summer 2015 Lesbian / Gay Law Notes 312
CIVIL LITIGATION
sexual orientation discrimination,
presumably because Currie, proceeding
pro se, had not thought to include it in
his complaint. One suspects that an
experienced employment lawyer could
have found a way to frame a complaint
that could survive a motion to dismiss,
although one would need more facts
than are revealed in this opinion to be
sure.
OKLAHOMA – U.S. District Judge
Robin J. Cauthron has refused to dismiss
a Title VII claim filed by the Justice
Department on behalf of a transgender
woman against Southeastern Oklahoma
State University, alleging that she
suffered discriminatory treatment and
a denial of tenure after she announced
her intent to transition. United States
v. Southeastern Oklahoma State
University, 2015 U.S. Dist. LEXIS
89547 (W.D. Okla., July 10, 2015). Dr.
Rachel Tudor intervened as a plaintiff,
represented by Brittany Novotny of
Oklahoma City and Ezra I. Young and
Jillian T. Weiss of the Law Office of
Jillian T. Weiss PC of New York. The
court rejected defendant’s claim that
Dr. Tudor’s complaint to the EEOC was
insufficient to meet the requirement to
exhaust administrative remedies before
filing suit, finding that the EEOC’s
own procedural regulations basically
allow notice filing, and that the 10th
Circuit had adopted a policy of “utmost
liberality” in construing EEOC charges
for this purpose. Judge Cauthron
concluded that the letter Dr. Tudor sent
to the EEOC was sufficiently detailed
to meet the exhaustion requirement,
putting the defendant on notice that
she was asserting a hostile work
environment and discrimination claim.
The court rejected defendant’s argument
that Dr. Tudor’s claim fell short on
the theory that she is not a member of
a “protected group.” She noted 10th
Circuit precedent stating that “like all
other employees, [Title VII] protection
extends to transsexual employees only if
they are discriminated against because
they are male or because they are
female.” “Here,” wrote the judge, “it is
clear that Defendants’ actions as alleged
by Dr. Tudor occurred because she
was female, yet Defendants regarded
her as male. Thus, the actions Dr.
Tudor alleges Defendants took against
her were based upon their dislike of
her presented gender.” Thus, the first
element of a Title VII discrimination
claim had been adequately pled. As
to her factual allegations, the court
said that defendant’s reading of her
Complaint was unduly narrow. “When
taken as a whole, it is clear that the
factual allegations set forth by Dr. Tudor
demonstrate that she was subjected to
unwelcome harassment based on the
protected characteristic and that the
harassment by Defendants’ employees
was sufficiently severe or pervasive to
alter a term, condition, or privilege of
her employment and thereby create an
abusive work environment.” Among her
allegations is discrimination regarding
insurance coverage for transition
expenses, which is not explicitly
mentioned in the court’s opinion but
was included in the factual allegations
presented to the court. She also alleged
discrimination concerning restroom
access, and recounted being told by
a Human Resources Administrator
that a management official of the
university had responded to news of Dr.
Tudor’s gender transition by urging her
discharge, stating that transsexuality
offended his religious beliefs. The court
also rejected the defendant’s argument
that the suit was barred under the
doctrine of laches, finding that Dr. Tudor
had begun the administrative process
to redress her complaint promptly and
any delay in filing suit was attributable
to the EEOC’s administrative process,
which should not be held against her
claim. This lawsuit is one of several filed
by the Justice Department on behalf of
transgender complainants seeking to
vindicate sex discrimination claims
under Title VII and establish precedents
313 Lesbian / Gay Law Notes Summer 2015
holding that discrimination against
transgender individuals because of their
gender identity or expression violates
the sex discrimination ban in Title VII.
OKLAHOMA – Did the Payne County
Detention Center violate the Americans
with Disabilities Act (ADA) when a pretrial detainee who was identified as HIVpositive was housed in a segregation
pod, thus restricting his movements
and his ability to enjoy the benefits,
programs or activities that were afforded
to general-housing detainees? The John
Doe plaintiff in Doe v. Board of County
Commissioners of Payne County,
Oklahoma, 2015 WL 3500019 (10th
Circuit, June 4, 2015), was unsuccessful
at trial in establishing ADA liability.
On appeal, he claimed that the trial
court inappropriately refused to let his
expert witness on prison best practices
testify, and improperly charged the jury
that they could not find for the plaintiff
unless they found that he had proved
that his HIV status was the sole reason
for his being placed in segregation. At
the time Doe was place in segregation,
the responsible officer noted on a form
that it was “due to his HIV statutes
[sic].” She later explained that she did
not elaborate because she believed that
there was not “enough room in our
field of putting all the reasons in the
cell movement log,” but she would have
explained that she knew Doe personally
and “due to the nature of his charges”
she worried about him getting into a
fight and exposing other inmates to
“bodily fluids or blood.” In reject Doe’s
arguments on appeal, the court first
concluded that the trial court “did not
abuse its discretion in excluding Mr.
Sparkman’s testimony. Despite Doe’s
arguments to the contrary, not a single
one of Mr. Sparkman’s sixteen opinions
pertained to the question of whether
Doe was placed in a segregated housing
unit solely because of his HIV status;
instead, Mr. Sparkman opined on the
inadequacies of the Detention Center’s
CIVIL LITIGATION
policies on classifying prisoners with
HIV and its failure to follow so-called
‘best practices.’” On the more hotly
contested point, the court held that in
the absence of Supreme Court precedent
to the contrary, it was bound to follow
10th Circuit precedent, which construes
the operative language of the ADA Title
II to require discrimination plaintiffs to
show that they suffered discrimination
“solely” because of their disability. The
standard of liability under civil rights
laws is a moving target. Under Title VII,
the standard for a discrimination claim
is “motivating factor,” but the standard
for a retaliation claim is “but for” the
plaintiff’s protected activity. Referring
to the Supreme Court’s recent decision
in University of Texas v. Nassar, 133
S. Ct. 2517 (2013), the court said, “If
Nassar suggests anything regarding
the instruction issue presented, it
suggests that a mixed-motive standard
does not apply to any claims other than
Title VII discrimination claims.” A
footnote describes the complex case law
accumulating around the question of
appropriate standards in discrimination
cases. In any event, in this case the panel
was unwilling to depart from prior
circuit precedent.
OREGON – Oregon Labor Commissioner
Brad
Avakian
approved
an
administrative law judge’s decision
holding that Aaron and Melissa Klein,
the owners of a bakery called Sweet
Cakes, had violated the state’s public
accommodations law by declining an
order for a wedding cake by a lesbian
couple, Rachel and Laurel BowmanCryer. The Kleins, who suspended
their business after this controversy
blew up, had festooned the business’s
website with Biblical quotations and a
statement that the bakery was interested
in providing cakes for traditional manwoman marriage ceremonies only.
Part of the order approved by Avakian
awarded damages of $135,000 to the
Bowman-Cryers, and ordered the
Kleins to remove from their website
and any other statement on behalf of
the business that they would not provide
their services to same-sex couples. The
Kleins protested that this violated their
First Amendment rights, as well as
contesting the underlying discrimination
determination, and vowed that they
would appeal this ruling to the courts.
The large damage award responded
to evidence that after the Kleins put a
copy of the complaint (including the
complainants’ contact information)
on their website, the Bowman-Cryers
were subject to harassment and threats
causing severe emotional distress. Thus,
in contradiction to reports in rightwing blogs that Oregon had “fined”
the Kleins $135,000, this was an award
of damages for emotional distress
stemming from the Kleins’ actions.
In a statement released through their
attorney, Paul Thompson, the BowmanCryers stated, “This has been a terrible
ordeal for our entire family. We never
imagined finding ourselves caught up
in a fight for social justice. We endured
daily, hateful attacks on social media,
received death threats and feared for our
family’s safety, yet our goal remained
steadfast. We were determined to ensure
that this kind of blatant discrimination
never happened to another couple,
another family, another Oregonian.
Everyone deserves to be treated as an
equal member of society.” The Kleins
responded by stating: “Americans
should tolerate diverse opinions, not
use the government to punish fellow
citizens with different views. This case
has become a poster for an overpowered
elected official using his position to root
out thought and speech with which he
personally disagrees.” Huffington Post,
July 2; updated July 3. The Washington
Times reported on July 15 that a crowdsourcing campaign on the internet had
raised pledges of $352,500 to support
the Kleins, so they will easily be able
to pay this fine if it is upheld on appeal
and actually profit handsomely by this
experience.
PUERTO RICO – U.S. District Judge
Daniel R. Dominguez rejected a claim
that when Puerto Rico amended its
anti-discrimination law to add “sexual
orientation” and “gender identity” as
prohibited grounds for discrimination,
it had created a cause of action for
an employee who alleged that she
was terminated because her romantic
male partner was a lawyer who had
filed several age discrimination cases
against the employer on behalf of his
clients. Villeneuve v. Avon Products,
Inc., 2015 WL 4006215 (D. P. R.,
June 19, 2015). Ms. Villeneuve began
working for Avon as Caribbean
Zone Manager in January 1998, and
subsequently had a variety of other
assignments until she was terminated
from employment on July 11, 2014.
She alleged that “the reasons behind
her employment termination were
unlawfully based on age and sexualorientation discrimination” in violation
of local law. Her case is in federal
court on diversity grounds, as she
does not allege any federal law claims.
“Her sexual-orientation discrimination
claim is specifically about her affective
relationship with a lawyer who has filed
several age-discrimination actions against
Avon,” explained Judge Dominguez.
“The aforementioned lawyer had
allegedly filed a federal-discrimination
complaint against Avon on March 24,
2014, which, according to Plaintiff,
led to Avon terminating Villeneuve’s
employment,” as a result of which she
alleged emotional and mental damages.
This decision is ruling on Avon’s partial
motion to dismiss the sexual orientation
discrimination claim, Avon asserting that
Plaintiff’s sexual orientation has nothing
to do with the case. Wrote the judge,
“Plaintiff alleges. . . that it is immaterial
to consider whether she is heterosexual
or homosexual to be protected under
Law 22. The Court disagrees. The
Court notes that in the complaint,
Plaintiff alleges that her termination
was due to her ‘longstanding affective
relationship’ with a lawyer who has filed
Summer 2015 Lesbian / Gay Law Notes 314
CIVIL LITIGATION
several federal cases against Defendant.
The described conduct by itself does
not constitute a protected class under
the definition of ‘sexual orientation’
that Law 1000 provides, even when
considering the expansive definition
of the term in the Law 22 amendment.
The purpose of the Law 22 amendment
was to extend the protection that Law
100 provided to a new set of classes
as outline by Law 22’s statement of
motives. The definition focuses on
the person’s ability to have emotional,
sexual or affectional attachments toward
someone else of the same or a different
gender. Hence, Law 100 prohibits an
employer from firing someone because
of their sexual orientation. However, an
employee being terminated because the
employer disapproves of the professional
legal conduct of the romantic partner is
totally different and is not considered as
a discriminating event within the law. In
the latter case, the professional conduct
of the partner of the employee plays no
role in classes protected under the law
as to the affected employee. Thus, no
Law 100 interest would come into play.
Plaintiff would argue that this definition
was intended to be interpreted in such
a broad way as to include relationships
as a protected class under this definition.
The Court disagrees with Plaintiff’s
reasoning.” The court noted that the
dismissal was solely as to the sexual
orientation claim, and that “Plaintiff’s
age discrimination claims persist,”
so Avon was ordered to answer the
complaint as thus reduced in scope.
TEXAS – The Houston Chronicle
(July 11) reported that Dave Wilson, a
“longtime anti-gay activist,” had filed
a lawsuit against the City of Houston,
seeking to compel officials to count the
signature on a petition he had submitted
seeking to amend the city charter to
prohibit men “who perceive or express
themselves as women” from using
women’s restrooms. The city’s legal
team had refused to accept the petition,
arguing that it was duplicative of another
petition challenging the city’s equal
rights ordinance that is already being
considered in another court proceeding.
There is a statute of limitations for
filing repeal petitions, and Wilson’s new
petition was submitted long after the
deadline. He argues, of course, that his
petition would not lead to repeal, merely
to carving out an exception from the
ban on gender identity discrimination
in places of public accommodation.
Wilson claims to have collected
22,000 valid signatures as against the
requirement of at least 20,000. Wilson
insists that the public should have the
right to vote about whether transgender
women should be allowed to use femaledesignated public restrooms.
TEXAS – In a decision that the court
designated as not to be published and
that the per curiam majority should be
ashamed of having made in any event,
as the dissent explains, a 5th Circuit
Court of Appeals panel voted 2-1 to
affirm summary judgment against
Daniel Valderaz, a male nurse who was
suing Lubbock County Hospital District
for retaliation against him for raising
a sexual harassment claim against his
co-workers in the Pediatric Intensive
Care Unit (PICU) at University Medical
Center. Valderaz v. Lubbock County
Hospital District, 2015 WL 3877788
(June 24, 2015). As dissenting Circuit
Judge James L. Dennis explained in
dissent, the majority misconstrued
and misinterpreted the evidence in a
way that deprived the plaintiff of the
jury trial to which he was entitled.
Valderaz encountered a problem
well-documented in the professional
literature: the overwhelmingly female
nursing staff in the PICU was intolerant
of male nurses, and subjected Valderaz,
a married heterosexual, to hostile
treatment with a distinct homophobic
tinge to it. His allegations are that “his
coworkers made frequent jokes about
him having a homosexual relationship
315 Lesbian / Gay Law Notes Summer 2015
with Fausto Montes,” the only other
male nurse in the PICU. (There were
seven female nurses.) Valderaz claims
that the stream of such comments were
also joined at times by doctors and
residents. When he asked them to knock
it off, things got worse. In addition, he
claims that female coworkers regularly
made remarks about “his inability to
be a good pediatric nurse because he
is a man. In particular, they said that
‘he could not provide as good of care
to patients of the hospital as the female
nurses’ because he ‘didn’t have the
nurturing capabilities of a woman.’”
Furthermore, coworkers filed reports
alleging that he was giving inadequate
treatment, leading the director of the
PICU to order him to undergo additional
training. On April 11, 2011, Valderaz
and his wife met with the director of
the PICU and the hospital’s HR director
to discuss the ongoing problem, as
Valderaz complained that the hostility
and uncooperativeness of his coworkers
was preventing him from providing
effective care. He alleges that he was
told they would make an exception to the
normal rules and allow him to transfer
to a different department, to which he
agreed, believing he had been promised
a transfer. However, what they actually
did was to remove him from full-time
status, putting him on “on call” status
(stripping him of employee benefits),
and ultimately he was terminated when
a transfer didn’t work out. By the time he
was offered an interview for an operating
room position, he had already accepted
employment elsewhere. The 5th Circuit
majority affirmed the district court’s
conclusion that Valderaz’s complaint
should be dismissed, in a decision that
lacks all empathy for the predicament he
found himself in and misrepresents his
deposition testimony as contradicting
the affidavit filed in opposition to
the dismissal motion. The majority
also mischaracterizes the deposition
testimony (as Judge Dennis shows by
quoting it at length), twisting it to make
it sound as if Valderaz agreed to quit
CIVIL LITIGATION
his job and understood that he wasn’t
being promised a transfer. All in all, the
opinion and dissent are dismaying to
read, as a documentation of a man being
hounded out of his professional position
due to the sexist and homophobic
attitudes and comments of co-workers
perpetuating stereotypes about male
nurses, and the injustice apparently
compounded by a circuit court majority
inexplicably mischaracterizing the
record before it on appeal. The majority
hiding behind the anonymity of a per
curiam opinion consisted of Circuit
Judge E. Grady Jolly, an elderly Reagan
appointee, and District Judge Carlton
Reeves (of Mississippi, sitting by
designation), who was appointed to the
district court by Barack Obama and
is the author of the decision declaring
Mississippi’s ban on same-sex marriage
unconstitutional. Dissenting Judge
Dennis is a former Louisiana Supreme
Court justice appointed to the 5th
Circuit by Bill Clinton.
TEXAS – In Pinedo v. Alliance
Inspection Management LLC, 2015 WL
3747426, 2015 U.S. Dist. LEXIS 76689
(W.D. Texas, June 14, 2015), U.S. District
Judge Kathleen Cardone granted the
employer’s summary judgment motion
on a Title VII retaliation claim, but
refused to grant summary judgment to
either party on a claim that the male
plaintiff had been the victim of samesex sexual harassment at the hands of
a co-worker for which the company
might be held liable, finding that there
were factual disputes requiring trial
resolution. Plaintiff Shane Pinedo
alleges that a co-worker subjected him
to frequent sexually-charged comments,
some of a homophobic nature, sufficient
to create a hostile work environment, and
that other co-workers and his supervisor
were aware of this misconduct and
did nothing to stop it. Pinedo was
discharged shortly after telling the
Human Resources Department that
he was the victim of discrimination,
although he did not share specifics with
them at that time. The company sought
to justify the discharge by reference
to various incidents and problems for
which Pinedo had not been “written up”
at the time, but several “write-ups” were
quickly generated shortly before the
discharge decision was communicated
to Pinedo. The court found, despite the
timing of the discharge and the writeups, that Pinedo had not communicated
sufficiently specific facts about his
discrimination claim to management
in order to charge the company with
the requisite knowledge to ground a
Title VII retaliation claim. However,
Judge Cardone rejected the company’s
arguments against the viability of
Pinedo’s same-sex harassment claim
under Title VII. The co-worker’s
taunts and sexually-charged comments
could be construed by a jury to exhibit
signs of sexual interest in Pinedo,
sufficient to invoke the first prong of the
Supreme Court’s same-sex harassment
methodology promulgated in the leading
case of Oncale v. Sundowner Offshore
Services, thus meeting the requirement
that the harassment was “because of
sex” as required to find a violation of
Title VII. The court also found that
Pinedo’s allegations were sufficient to
create a jury issue on the questions of
severity and pervasiveness, as well as
the question whether the employer was
negligent in not taking action in light
of the open nature of the harassment.
The company argued, unsuccessfully,
that Pinedo’s failure to file a formal
complaint with management about
the co-worker’s conduct should let the
company off the hook.
VIRGINIA – The National Center for
Lesbian Rights announced that the
U.S. Department of Justice had filed
an amicus brief in support of NCLR’s
client in Student v. Arcadia Unified
School District, arguing that under Title
IX transgender students are entitled to
use the restroom matching their gender
identity. NCLR hailed the Department
for going one step beyond prior guidance
documents to lend its voice to ongoing
litigation on this issue.
WISCONSIN – Here is some ridiculous
pro se litigation, brought by Robert
C. Braun against Milwaukee County
Executive Chris Abele, Milwaukee
County Sheriff David A. Clarke, Jr.,
Milwaukee County Sheriff’s Deputy
Byron Terry, and some other police
officers, in connection with the
extraordinary events of June 7, 2014,
when Abeles personally paid to open
up City Hall so that same-sex couples
could get married between the time
U.S. District Judge Barbara Crabb held
unconstitutional Wisconsin’s ban on
same-sex marriage in Wolf v. Walker,
986 F.Supp.2d 982 (W.D. Wis. 2014),
and the time shortly thereafter when the
7th Circuit granted a stay of her ruling
pending appeal. (The ruling ultimately
went into effect after the 7th Circuit
had affirmed Crabb’s decision and the
Supreme Court ruled on Oct. 6, 2015,
that the decision would not be reviewed,
leading to the stay being lifted.) Over
70 same-sex couples were married
that Saturday morning in Milwaukee’s
City Hall. Plaintiff Braun was part of a
small group of protesters who showed
up a City Hall to demonstrate against
the court’s decision and the conduct of
same-sex marriages at City Hall. In this
lawsuit, Braun asserted constitutional
and federal Religious Freedom
Restoration Act and state criminal law
claims against Abeles for opening up
City Hall for this purpose and Clarke
and the police officers for the action on
the day of containing the demonstration
and refusing to allow the demonstrators
to enter City Hall or obstruct pedestrian
traffic in front of the building. Braun
also complained that the police showed
favoritism to some demonstrators who
showed up to support the decision
and cheer on the couples who were
getting married. U.S. District Judge
Summer 2015 Lesbian / Gay Law Notes 316
CIVIL / CRIMINAL LITIGATION
J. P. Stadmueller granted a motion by
various of the defendants to dismiss
the complaints against them. The court
found that, of course, federal RFRA has
no application to claims against state
actors, and a state statute criminalizing
misconduct in office by public officials
did not give rise to a private right of
action. The court also found that Braun
had failed to state a federal constitutional
claim against Abeles, Clarke and the
police officers. The judge’s impatience
with the case is palpable, best reflected
by his parting shot in a footnote. Braun
had argued that the defendants are “not
entitled to qualified immunity because
this case was moved from state court to
federal court” and “there is no mention
of it in the constitution.” Wrote the
judge, “Because the Court need not
reach the issue of qualified immunity,
the Court will shelve explaining – at
length, or otherwise – the fallacy of this
argument.”
CRIMINAL LITIGATION NOTES
AIR FORCE COURT OF CRIMINAL
APPEALS – In U.S. v. Burckhardt, 2015
WL 4039268 (U.S.A.F. Ct. Crim. App.,
June 12, 2015) (not officially published),
the court confronted the aftermath of
U.S. v. Gutierrez, 73 M.J. 172 (C.A.A.F.
2015), in which it had accepted
scientific evidence that an HIV-infected
person using current state-of-the-art
medication presents a negligible risk
of transmission through sexual contact.
In this case, Sr. Airman Burckhardt, a
gay man who was HIV-positive, had
unprotected sex with several nine
different men, eight of whom he did
not inform about his serostatus. During
the subsequent investigation, he lied to
investigators about having informed
several of his sexual partners about his
serostatus. He was court-martialed prior
to the Gutierrez decision and ultimately
pled guilty to an array of charges,
including aggravated assault, with an
understanding that he would appeal the
sentence imposed by the military judge
by making the scientific argument.
After Gutierrez, the aggravated assault
charge would have to fall out of the case,
since Burckhardt’s conduct was not
likely to transmit the virus. Finding that
Burckhardt’s guilty plea to the aggravate
assault charge was, in retrospect,
improvident because of the significant
difference in maximum sentences to
which he would be exposed, the court
reassessed his sentence, affirming only
so much of the original sentence “as
provides for a bad-conduct discharge
and confinement for 36 months.” The
court had found that the remaining
charges were serious, in that evidence
at the court-martial established that
Burckhardt’s sexual partners would not
have consented to unprotected sex with
him has he revealed his serostatus, so his
conduct still constituted a battery. Much
of the opinion was devoted to rejecting
his speedy trial claim and determining
whether, in the procedural posture of the
case, it was open to the court to consider
the appeal on the merits in light of his
guilty plea.
U.S. ARMY COURT OF CRIMINAL
APPEALS – U.S. v. Pinkela, 2015 WL
3789499 (June 11, 2015) (not reported
in M.J.), is yet another case where a
military officer convicted at court
martial for engaging in unprotected
sex contests the charge that he had
engaged in conduct “likely” to cause
death or grievous bodily harm. As
in the case discussed above, Lt. Col.
Pinkela’s prior conviction was vacated
for reconsideration in light of U.S. v.
Gutierrez, 73 M.J. 172 (C.A.A.F. 2015),
but this time the defendant did not
fare well, since the charges included
unprotected anal sex. And that’s not
all. The court wrote in confirming the
conviction: “The evidentiary posture
of this case is quite different than that
in Gutierrez. An expert testified in this
case that ‘infectivity has to do with
317 Lesbian / Gay Law Notes Summer 2015
things like viral load, whether they
have open sores, the type of sex in
which they’re engaged.’ Appellant had a
‘pretty significant’ viral load and did not
use a condom. First Lieutenant CH also
testified that his anus was bleeding as
a result of appellant sexually assaulting
him with a ‘shower shot’ enema into
his anus in preparation for intercourse.
Appellant and 1LT CH also engaged in
anal intercourse, distinct from the sexual
behavior in Gutierrez. Given these facts,
we distinguish appellant’s conduct from
the conduct in Gutierrez. We have made
our ‘own independent determination
as to whether the evidence constitutes
proof of each required element beyond a
reasonable doubt.’ And are convinced it
does meet that standard.” In a footnote,
the court acknowledges that “the victim
in this case, First Lieutenant CH,
tested positive for the HIV virus. We
do not consider that fact in rendering
this decision. Although we might infer
1LT CH’s HIV status from chat logs
admitted into evidence, we do not make
that inference here.” The court also
noted that although there was evidence
that the chance of transmission in a
single sex act was 1.4% on average, it
asserted that “aggravating factors” in
this case undoubtedly posed a higher
transmission risk.
ALABAMA – The Court of Criminal
Appeals of Alabama rejected an appeal
by Joshua Wesson of his conviction on
sodomy charges. Wesson v. State, 2015
WL 4066690 (July 2, 2015). Wesson was
indicted for “engaging in deviate sexual
intercourse with a woman by forcible
compulsion” and for sexual misconduct
(a lesser included charge) under state
laws that purport to outlaw all acts of
oral or anal sex, providing that consent
is not a defense. Of course, under
Lawrence v. Texas this statute could not
be used to prosecute private consensual
adult sex, but that is not what Wesson
was charged with. He filed a motion
to dismiss based on Lawrence but,
CRIMINAL LITIGATION
according to the opinion for the court by
Judge Windom, “He did not, however,
present any evidence indicating that
his conduct was protected under the
Supreme Court’s holding in Lawrence.”
The circuit court denied his motion and
he entered into a plea agreement under
which he reserved the right to appeal the
court’s denial of his motion to dismiss the
sexual misconduct charge. The appeals
court found that he had not preserved
the right to argue that the statute was
facially unconstitutional, so he was
limited to an as-applied challenge. As
to that, he offered no evidence that
the conduct was consensual. “The
record in this case fails to show that
Wesson’s conduct falls within the
conduct protected under Lawrence,”
wrote Windom. “Specifically, there is
no evidence in the record indicating that
Wesson engaged in consensual deviate
sexual intercourse,” so he “failed to
meet his burden of establishing” that
the law was unconstitutional “as applied
to him.” Thus, the Alabama court
takes a different view from the 4th
Circuit, which held Virginia’s similar
unreformed sodomy law was facially
unconstitutional a few years ago on
the ground that it clearly criminalized
constitutionally protected conduct by
not including a consent defense, and
thus could not be used to prosecute
anybody. Here, the Alabama court
was seemingly hanging its hat on the
conclusion that Wesson hadn’t preserve
the right to appeal on grounds of facial
unconstitutionality. * * * However, on
the same date, the Court of Criminal
Appeals issued a ruling in Williams v.
State, 2015 Ala. Crim. App. LEXIS 46,
2015 WL 4066693, holding that a man
convicted of sexual misconduct for have
anal sex with a male hotel clerk was
entitled to the reversal of his conviction
on grounds that the sexual misconduct
statute could not applied to consensual
sex. The hotel clerk had complained that
the sex, which took place in a bathroom
off the hotel lobby at the instigation of
Williams, was not consensual. Williams
was charged with both sodomy and
sexual misconduct; the jury’s acquittal
on the sodomy charge meant that
it found the conduct consensual.
Therefore, said the appeal court, since
the conduct was found to be consensual,
Lawrence barred Williams’ prosecution
for it under the sexual misconduct law.
(The court noted that this was an “as
applied” challenge, so it had no occasion
to consider the argument that the statute
was unconstitutional on its face.) The
court rejected the state’s request to
be able to retry Williams, finding that
inasmuch as jury had acquitted him on
the sodomy charge, thus necessarily
finding his conduct consensual since
he didn’t deny having the sex with the
clerk, to retry him would constitute
double jeopardy in violation of the
Constitution. The significant difference
between the two cases, of course, was
that Wesson failed to provide evidence
that the woman had consented to his
conduct.
ARIZONA – In State v. Gibson, 2015
WL 3991080 (Ariz. Ct. App., June 30,
2015), the male appellant was convicted
by a jury of sexual misconduct and
sexual abuse of two minors who were
his grandchildren. Part of his defense
at trial was that he was straight and
did not have any sexual interest in
males. However, gay pornography
was found in his home pursuant to a
lawful search warrant. He protested
against its admission at trial. Wrote the
court: “During defense counsel’s crossexamination of Defendant’s daughter
regarding Defendant’s relationships
with various women over the years, the
trial court questioned defense counsel
about the relevancy of these questions.
The court asked counsel if the questions
were intended “to show that [defendant
was] interested in women.” Defense
counsel replied, “that’s true, and that’s
part of our defense.” Based on this
response, the trial court determined
that Defendant had “opened the door”
to the evidence, and that the state would
be permitted to show Defendant had
gay pornography.” The court of appeals
agreed with this ruling: “During cross
examination, when asked directly if he
was “indicating to the Jury that [he] did
not molest [his] grandchildren, at least
in part because [he did not] have any
interests in males,” Defendant replied,
“[t]hat is correct, to 150 percent, yes,
sir.” This evidence clearly opened
the door to the admission of the DVD
to rebut Defendant’s claims that he
did not commit the offenses because,
among other things, he had no interest
in males. . . Furthermore, the prosecutor
made no improper use of the evidence.
In his closing arguments, the prosecutor
argued only that Defendant’s claim that
he did not commit the offenses because
he had no interest in men were belied by
the “explicitly pornographic homosexual
DVDs” found in his possession. We also
disagree with Defendant’s contention
that the “particular title” of the DVD
“was likely extremely offensive” to some
jurors such that it would have invited them
to speculate that defendant committed
the offenses. The prosecutor did nothing
to suggest that the mere possession of
homosexual pornography made it likely
that Defendant had committed these
offenses, and Defendant’s argument
is speculative and unsupported by the
record. The trial court did not abuse its
discretion in finding the evidence of the
DVD admissible.”
CALIFORNIA – California trial
courts persist in ordering HIV testing
for defendants convicted of sexual
abuse of children, regardless whether
the evidence shows acts that could
transmit HIV. In People v. Daniels,
2015 WL 3901980 (Cal. 3d Dist. Ct.
App., June 25, 2015) (not officially
published), the court of appeals
reversed the trial court’s HIV testing
order. Wrote Justice Murray: “Here,
the trial court made no express
findings of probable cause but merely
Summer 2015 Lesbian / Gay Law Notes 318
CRIMINAL LITIGATION
noted the probation report did not
recommend such a test and asked for the
parties’ positions. The prosecutor, after
conferring with the only victim present
at the sentencing hearing, asked for the
test. Thereafter, the trial court asked
if the matter was submitted. Defense
counsel replied, ‘I would just note that
the nature of the conduct would not
have subjected anyone to that risk and
submit it.’ The trial court ordered the
test. As defense counsel noted, nothing
in the record suggests any possibility
of transmission of defendant’s bodily
fluids to the victims. Further, the court
made no express finding of probable
cause and we see nothing supporting
an implied finding. Accordingly, on this
record the testing order is invalid.” The
defendant had asked that all mention
of HIV testing be stricken from the
trial record, and that anybody to whom
test results had been disseminated be
required to destroy them. The court
agreed to the former, but noted that it
had no jurisdiction to issue orders to
anyone not a party to the case.
CONNECTICUT – The Appellate
Court of Connecticut ruled June 16 in
In re Angel R., 2015 WL 3561257, that
a transgender girl who had pled guilty
to a charge of assaulting a law officer
and had been remanded to the custody
of the Department of Children and
Families (DCF) as a delinquent, was
deprived of her due process rights when
DCF subsequently sought and obtained
a court order to transfer her to the
Department of Correction, where she
was confined in a female prison among
convicts and adults awaiting trial on
criminal charges. Such transfer would
almost necessarily include periods in
solitary confinement, in light of the
safety issues for a transgender teen
in an adult prison. Although the court
rejected the argument that the statute
under which the transfer was effected
was unconstitutionally vague, or that the
minor’s guilty plea to the delinquency
charge was invalid because she was not
advised at the time of the possibility
that DCF could move to transfer her to a
penal institution as opposed to a juvenile
institution, it agreed with the appellant
that the trial court’s application of a
preponderance of the evidence standard
in determining whether to transfer the
minor from the juvenile system to the
corrections system was inadequate
to meet constitutional due process
standards. The court particularly
focused on the different mandates of
the two institutions, and the fact that
a penal institution was ill-equipped
to serve the child protective functions
of a juvenile institution. The court
concluded that a “clear and convincing
evidence” standard should apply to the
court’s determination of the necessity
for such transfer in light of the best
interests of the child. The fact recitation
in the opinion for the panel by Judge
Thomas A. Bishop shows that there
was some initial confusion due to
Angel’s transgender status, as DCF
initially petitioned to have her sent to
a men’s prison, but the trial judge at
the juvenile division of the Fairfield
County Superior Court redirected her
to a women’s prison. In the event, Angel
had done time at the women’s prison
and been returned to the custody of
DCF by the time the appeal came to be
decided, confronting the court with a
mootness argument by DCF. However,
the court determined that given the
ages of juveniles involved in transfer
petitions and the typical periods of
such transfers, this was the kind of
issue that was recurring and capable
of evading review, implicating an
important question of law, so proceeded
to the merits. The court articulated
the following standard: “We conclude,
accordingly, that in order to protect the
constitutionality of the transfer statute,
the burden should be on DCF to adduce
evidence regarding whether a transfer
to DOC is warranted by ‘clear and
convincing evidence,’ that the juvenile
subject to transfer to DOC is a danger
319 Lesbian / Gay Law Notes Summer 2015
to himself or herself or others or cannot
be safely held under the supervision
of DCF. Some evidence must also be
adduced by the proponent that transfer is
in the juvenile’s best interest.” The court
rejected the appellant’s argument that
the normal “beyond a reasonable doubt”
standard should be applied because the
transfer would be to a penal institution,
observing that the U.S. and Connecticut
Supreme Courts had both allowed for
less demanding proof standards in cases
involving restrictions on the liberty of
juveniles, who are always in “custody”
either of their parents, an institution or
the state, until they reach age 18 and are
emancipated.
MISSOURI – Michael L. Johnson,
convicted in May on five felony counts
for recklessly infecting one sex partner
with HIV and risking infection of four
others, was sentenced on July 13 by
St. Charles County Circuit Judge Jon
Cunningham to 30 years in prison.
Cunningham stated that Johnson had
committed “very severe” crimes. “The
main thing is the profound effect your
actions have had on the victims and
their families,” he said, according
to a report posted by the St. Louis
Post-Dispatch. Johnson made a brief
statement. He did not apologize for his
actions, but said, “I never want anyone
to have to go through the pain” of
having HIV. His attorney had argued for
a lighter sense, contending that contract
HIV “is not a death sentence anymore”
because of current treatments. The
prosecutor countered, “This defendant
was totally irresponsible and placed
countless people at risk,” and added
the controversial assertion that drugs
currently used to treat HIV infection
might lose their effectiveness and
that HIV could spread to places and
people where access to medication was
poor. Johnson, who had been a varsity
wrestler for Lindenwood University,
was expelled as a result of the criminal
charges being filed against him.
CRIMINAL LITIGATION
NEW JERSEY – State v. Durmer, 2015
N.J. Super. Unpub. LEXIS 1575 (N.J.
App. Div., July 1, 2015), may stand
as a particular instance of injustice.
On December 16, 1997, Joel Durmer
was convicted on multiple counts on
claims that he had orally and anally
sexually molested his young nephew
numerous times, and he was sentenced
to concurrent terms of twenty years
with ten years of parole ineligibility on
first degree sexual assault convictions
and a consecutive ten-year term with
five years of parole ineligibility for a
child endangerment conviction. He
consistently denied having committed
the charged acts and filed numerous
appeals, ultimately being turned down
by the U.S. Supreme Court on direct
appeal of his conviction and appeal of
a denial or a writ of habeas corpus. It
wasn’t until 2007, he claims, that he
finally received discovery from the
Office of the Public Defender “that he
had been trying to get since 1999,” that
he learned that there was a document
withheld from evidence, purporting to
be a letter written by the victim to the
victim’s brother Mike, revealing that
the victim had been sexually molested
by their father (Joel’s brother) and had
been engaging in consensual sexual
activity with Mike. The letter lent itself
to the interpretation that the victim
had framed “Uncle Joel” as revenge
for statements Joel had made about the
boys’ mother, and “Now I have to get
Dad back for all he did to us.” The letter
continues: “But Mike we have to stop.
The last couple of times it really hurt
when you went inside like it did when
Dad did it for the first time. Maybe I
really am homosexual but we have to
stop for now okay? Maybe later when
I get older we can do it more. Do you
like girls to [sic] or just me? Send me
a letter back okay? And yes I love you
just nobody else. Love, [C.B.].” Durmer
sought in this newest motion to reopen
his conviction and trial on grounds of
newly-discovered evidence, but the trial
court rejected his motion, finding “that
he failed to show excusable neglect
for failing to timely file his second
petition” for post-conviction relief. The
Appellate Division also rejected his
attempt to reopen the case, this time
premised in part on Durmer’s failure
to “authenticate” the document, which
did not bear a complete signature by
his nephew, just a first name. If, in
fact, Durmer was being framed by a
vengeful teenager (now, of course, an
adult), this would stand as a severe
injustice. (Durmer pointed out in the
motion the additional assertion that the
prosecutor had failed to go after the
boy’s father for sexually assaulting his
sons.) If, as Durmer alleges, the Public
Defender possessed this document at
the time of trial but failed to introduce
it as evidence or use it to impeach
the victim’s testimony, that would be
ineffective defense of his case. But the
court was unwilling to allow him to
reopen his case based on this newlydiscovered letter in the absence of
evidence of authentication. Public
Defender Joseph Krakora represented
Durmer on this appeal, and Durmer
filed a supplemental brief pro se,
presumably to make arguments that
the Public Defender wouldn’t make. Of
course, there is always the possibility
that the Public Defender believed that
the letter was not authentic. . . So one
is not sure what to think about this, but
if Durmer’s allegations are correct, the
wrong person is sitting in prison.
NEW YORK – An Appellate Division
panel affirmed a ruling by New York
County Surrogate Nora Anderson
that Ronald D. Myers’ home-made
will should be construed to leave his
stock portfolio, apart from some IBM
stock, to his mother rather than to
his same-sex life partner. Ephraim v.
O’Connor, 2015 WL 4002277 (N.Y.
App. Div., 1st Dep’t, July 2, 2015). In
the will, Myers wrote that he left “all
monies” to his mother, and “all stocks
of I.B.M.” and “all personal property”
to his life partner, whom he referred to
as his “close friend.” He designated his
mother and his life partner to be coexecutors. At the time he made his will,
Myers’ sole stock ownership was I.B.M.
shares, but at his death his portfolio
included other significant stock
holdings. The dispute was whether the
rest of the stock portfolio would go
to his mother or his life partner. The
surviving partner argued that stock is
personal property and should go to him.
The mother argued that by designating
I.B.M. stock to the partner, Myers did
not intend his other stock to go to the
partner. Surrogate Anderson opted for
the mother, who is now deceased as is
Myers’ former life partner, so the dispute
is now between successors in interest
on both sides. LeGaL member Tom
Shanahan, representing the fiduciary
for the deceased life partner, argued
that the stock should come within the
term “personal property” rather than
monies and go to his client, and that the
surrogate had improperly favored the
mother over the life partner in resolving
this interpretive dispute. The Appellate
Division was not sympathetic, writing:
“The court properly interpreted the will
as intending to bequeath to decedent’s
mother the stock in companies other
than IBM, in view of the limiting
language of the bequest to his life
partner and the broad language of
the bequest to his mother. If decedent
viewed stock as ‘personal property,’
he would not have expressly noted
the bequest of the IBM stock, since it
would have been included in the more
general bequest to his life partner.”
Finding that the court’s reliance on
this linguistic distinction was “proper,”
the court found that because the will
itself referred to the partner as his
close friend, the court’s “reference to
decedent’s life partner as a ‘friend’
does not show that the court relied on
a presumption in favor of relatives or
that it marginalized or disregarded
decedent’s long-term relationship with
his life partner.”
Summer 2015 Lesbian / Gay Law Notes 320
CRIMINAL LITIGATION
OHIO – U.S. Magistrate Judge Michael
R. Merz recommended denial of a
petition for writ of habeas corpus filed
by Andre Davis, who had been convicted
on several counts of felonious assault,
having engaged in sexual contact with
numerous women without disclosing
that he was HIV-positive, and is serving
an aggregate sentence of 32 years.
Davis v. Warden, London Correctional
Institution, 2015 WL 3466857 (S.D.
Ohio, June 1, 2015). Several of Davis’s
arguments were disposed of on the
ground that they did not present federal
constitutional issues, but were solely
concerned with issues of state law, and
thus could not serve as the basis for a
habeas corpus petition. However, Judge
Merz acknowledged that a conviction
based in insufficient evidence would
present a Due Process issue. Davis
argued that there was insufficient
evidence that he knew he was infected
with HIV at the time of the charged
sexual encounters. The evidence
introduced included a laboratory report
showing a positive HIV-antibody test
result, testimony that Davis had texted
somebody that he was HIV-positive,
and evidence that Davis had signed
a document required for counseling
at an AIDS organization indicating
that he was requesting “medical case
management
services
supportive
services offered by STOP AIDS.”
Judge Merz rejected the contention
that this was insufficient evidence of
Davis’s state of knowledge to support
a conviction, and specifically rejected
Davis’s sophistical argument that testing
positive for HIV-antibodies was not
sufficient to prove that somebody was
infected with HIV.
TEXAS – Finding that San Antonio
police officers did not have probable
cause to detain a gay African-American
man on the street at night and subject
him to a search (which yielded a Ziploc
bag of cocaine), the Texas 4th District
Court of Appeals found that District
Judge Ray Olivarri erred in denying a
motion to suppress the evidence, and
reversed the penalty imposed upon
the defendant’s subsequent plea of no
contest to the charge of possession
of a controlled substance as part of a
plea bargain. Johnson v. State, 2015
Tex. App. LEXIS 6973 (July 8, 2015).
Shamar Johnson testified that on the
night in question he had been visiting
one club, then drove over to another club
and parked his car. Because the parking
lot was full, he parked on the street and
was walking towards the second club
when he was suddenly accosted by two
police officers, asked lots of questions,
and required to put his hands up on the
police car while submitting to a search.
The police officer who testified said
that Johnson was loitering or walking
with no apparent purpose in an area
near gay clubs that was a known site for
gay prostitutes soliciting customers. The
trial court bought the officer’s testimony
hook, line and sinker and denied
Johnson’s motion to suppress. Justice
Karen Angelini wrote for the court of
appeals that the state, in defending the
trial court’s action, was “overstating”
the police officer’s testimony. “Thus,
Officer Connelly testified that Johnson
was standing around in a dimly lit
area with an apparent purpose (Officer
Connelly later clarified that he meant
pacing without an apparent purpose)
and many prostitutes in the area also
‘loitered’ trying to pick up dates.
We disagree with the State that this
testimony is sufficient to support the
officers having reasonable suspicion
to detain Johnson. Being present in
a ‘dimly’ lit area, even one known for
prostitution, at about 9:00 p.m. and
walking without an apparent purpose
does not support an officer having
reasonable suspicion to suspect that
person of engaging in prostitution.” The
court then found that Johnson’s consent
to being searched was not an act of free
will under the circumstances. The court
concluded that “Johnson’s consent to
search his person did not dissipate the
321 Lesbian / Gay Law Notes Summer 2015
taint of the officer’s violation under
the Fourth Amendment because his
consent was not an independent act of
his free will.” Thus, the conviction had
to be reversed because the unlawful
search “undoubtedly contributed in
some measure to the State’s leverage
in the plea bargaining process and may
well have contributed to [Johnson]’s
decision to relinquish his constitutional
rights of trial and confrontation in
exchange for a favorable punishment
recommendation.” The trial court had
sentenced him to “deferred adjudication
community supervision” for two years
and a $1,500 fine, of which $500 was
“probated.” The sentence was set aside
and the case remanded for “further
proceedings consistent with this
opinion.”
TEXAS – In Dunn v. State of Texas, 2015
WL 3814304 (June 18, 2015), the Court
of Appeals of Texas in Dallas affirmed
the jury conviction and forty year prison
sentence imposed on Larry Dunn, Jr.,
for murdering Cicely Bolden, a woman
with whom he had been having an affair,
after he learned that she was HIVpositive. Dunn, married and a father, met
Bolden through a chat line, “which led
to a sexual relationship that lasted a few
weeks.” During a phone conversation,
Bolden mentioned a TV show she was
watching “in which a girl told a guy
she was having a relationship with that
she was HIV positive and that how it
happened was funny.” Dunn remarked
that it was not funny, and testified that
this conversation threw up a red flag for
him. A few days later, he asked Bolden
in a phone conversation if she had HIV.
At first she denied it, then admitted it
was so. Dunn immediately assumed
that Bolden had probably infected him
and he had probably infected his wife.
(The court’s opinion does not mention
whether Dunn or his wife was actually
infected.) He felt suicidal and distraught,
but about a week later, after Bolden
contacted him again to find out why he
CRIMINAL LITIGATION
had stopped contacting her, he went to
her apartment, he says to confront her
about why she would expose him to HIV.
He claimed that he did not go intending
to kill her. She apparently concluded
from his text messages that he was
coming over to have sex, and when he
arrived she performed oral sex on him.
In the ensuing conversation, he became
outraged at her lack of concern or any
remorse, and her statement that “you are
not the first and you won’t be the last,”
which he construed to mean that she was
“basically targeting men to give HIV
to.” He became agitated, went into the
kitchen, picked up a knife he saw on the
counter, returned and stabbed her twice
in the neck, leaving her to bleed out,
knowing that her children would come
home from school later and find her in
that condition. Dunn subsequently made
a variety of contradictory statements to
police and to the press, some of which
might support his claim that this was
a “heat of passion” killing, others that
might lend themselves to a conclusion
that he went to her house to seek
revenge. The court of appeal rejected
his argument that the jury’s conclusion
that he did not act in the heat of passion
due to adequate provocation was against
the weight of the evidence. This issue
would be the difference between a
first-degree felony and a second-degree
felony, which would significantly affect
the length of the prison sentence. “The
issue of whether appellant acted under
the immediate influence of sudden
passion hinged on the jury’s evaluation
of the appellant’s credibility, and we
defer to their resolution of the issue,”
wrote Justice Brown. “After reviewing
the evidence, we cannot conclude the
jury’s finding that appellant did not
act under the immediate influence
of sudden passion arising from an
adequate cause is so against the great
weight and preponderance of the
evidence as to be manifestly unjust. We
overrule appellant’s first issue.” Dunn
also objected to the introduction of his
text messages that the police retrieved
from Bolden’s cellphone. The court
acknowledged that individuals enjoy a
right of privacy regarding the contents
of their own cellphones, but found
no support for the proposition that an
individual has a right of privacy in text
messages residing on the recipient’s
cellphone. Certainly, a communication
between a married man and a person
with whom he is having an affair is not
privileged.
VIRGINIA – Finding that defendant
Albert Fowler’s conditional guilty plea
to a charge of soliciting sex from a minor
was not “knowingly and voluntarily
entered,” the Court of Appeals of
Virginia reversed and remanded for a
new trial in Fowler v. Commonwealth,
2015 Va. App. LEXIS 217, 2015 WL
4207442 (July 14, 2015). Fowler, then 49
years old, handed the “victim”, a then17–year-old boy, a note while the victim
was working in a grocery store. The note
complimented the boy – “I think you are
one fine looking guy. Very hot” – and
offered to take him out for dinner or a
drink and to give him sexual pleasure
in Fowler’s home. After receiving the
note, the boy alerted his manager, who
called the sheriff’s office. A month later,
Fowler gave the victim a substantially
similar note. The victim passed this note
to his mom, who contacted the sheriff’s
office. A police investigator called the
number on the note, pretending to be
the victim, figured out the identity of
Fowler using the internet, and Fowler
was arrested and charged with violating
Va. Code Ann. Section 18.2-374.3 (Use
of communications systems to facilitate
certain offenses involving children). It
seems that it is a felony in Virginia for
man of Fowler’s age to contact a teenager
with a solicitation for sex. Fowler pled
not guilty and the state sought a jury trial.
On the date of the trial, Fowler’s attorney
agreed to stipulate to the evidence the
prosecution intended to proffer, relying
for his defense on motions to strike
the evidence which, if denied by the
court, would lead Fowler to withdraw
his plea and enter a conditional guilty
plea, provided he could appeal the
evidentiary ruling. The trial judge asked
Fowler if he understood that by pleading
guilty, “you may be waiving your right
to appeal this Court’s decision except for
the objections that have been noted on
the record in regard to the conditional
plea?” With Fowler’s statement that he
understood, the judge sentenced him
to “ten active years in prison.” (Seems
pretty steep for two politely worded
notes communicating a proposition
that was never consummated.) When
Fowler sought to appeal, the appeals
court found that “Although an accused
has the constitutional right to enter a
guilty plea, an accused does not have a
constitutional right to enter a conditional
guilty plea.” Although there is a
statutory authorization for conditional
pleas in some circumstances, it doesn’t
extend to the pretrial evidentiary ruling
that Fowler wanted to appeal. “Here, the
legislature explicitly limited the scope
of appeals form conditional pleas to
pretrial motions,” wrote Judge Richard
Y. Atlee, Jr., for the court. “To permit an
appeal of the denial of a motion to strike
would impermissibly expand the scope
of the statue beyond what the legislature
intended.” However, the court saw some
fundamental unfairness here, because
Fowler had agreed to withdraw his “not
guilty” plea on his understanding that he
would be able to appeal the evidentiary
ruling. Thus, concluded the court,
“appellant clearly did not enter his plea
intelligently and knowingly. His counsel
unequivocally stated that appellant
was entering a conditional plea for the
express purpose of retaining his right
to appeal the denial of his motions to
strike. The Commonwealth did not
object. The judge did not clarify that
this was not allowed under Code Sec.
19.2-254. Everyone present appeared to
share the same mistaken understanding
of Code Sec. 19-.2-254.” Thus, the court
reversed the conviction, vacated the
plea, and remanded “for proceedings
Summer 2015 Lesbian / Gay Law Notes 322
CRIMINAL / PRISONER LITIGATION
consistent with this memorandum
opinion.” Fowler gets a second shot
at defending against the charges. His
attorney on this appeal was Gregory T.
Casker.
PRISONER LITIGATION NOTES
U.S. SUPREME COURT – Not
infrequently, LGBT prisoners’ civil
rights cases involve allegations of
excessive use of force by corrections
officers. A 5-4 Supreme Court made it
slightly easier for such claims to prevail
in Kingsley v. Hendrickson, 2015 WL
2473447, (June 22, 2015) – at least
for pre-trial detainees. Corrections
officials extracted plaintiff Michael
Kingsley from his Wisconsin jail cell
for a rules violation and placed him
in handcuffs. When the incident was
over and Kingsley resisted removal of
the cuffs, it is undisputed that officers
applied a Taser to the cuffed inmate
for five seconds. Kingsley also alleges
that they slammed his head into a
cement bunk. Kingsley appealed a jury
verdict for the defense, challenging
instructions that required him to prove
subjective intent to use excessive force.
The Supreme Court reversed a divided
Seventh Circuit affirmance, holding that
objective standards should apply to the
“excessive” component of the state of
mind of the officers. Justice Breyer (for
himself and Justices Kennedy, Ginsburg,
Sotomayor and Kagan) wrote that, while
the intent to do the action (using the
Taser) was a subjective one, the intent
to do so excessively was objective.
Prior cases holding that excessive force
was absent if “applied in a good faith
effort to maintain or restore discipline”
or present if done “maliciously and
sadistically to cause harm” – see e.g.,
Whitley v. Albers, 475 U.S. 312, 32021 (1986) – did not require a wholly
subjective test: what officers “believed”
to be excessive at the time. Rather,
the phrases were examples of “non-
exclusive” considerations in reaching an
objective conclusion. There had been a
circuit split on this point. The decision
is limited to due process claims of pretrial detainees under the Fourteenth
Amendment, and its application to
convicted prisoners’ Eighth Amendment
claims is specifically reserved. Justice
Scalia dissented (for himself, Chief
Justice Roberts and Justice Thomas) and
wrote that subjective standards should
apply to both components: decisions
to use force and excessive use of force,
asserting that the majority had adopted
a “heuristic” (a mental shortcut) in a
“tender-hearted desire” to “tortify” the
Fourteenth Amendment. Justice Alito
also dissented, writing that certiorari
was improvidently granted and that the
claims should have been litigated under
the Fourth Amendment. William J. Rold
U. S. COURT OF APPEALS – SIXTH
CIRCUIT – A gay former prisoner
described as “having effeminate
mannerisms” lost an 8½-year battle to
vindicate his rights when Senior Circuit
Judge Ralph B. Guy (for himself and
Circuit Judges Karen Nelson Moore
and David W. McKeague), affirmed
the summary judgment entered against
him by Judge Nancy G. Edmunds of the
Eastern District of Michigan in Lee v.
Willey, 2015 WL 3771051, 2015 U.S.
App. LEXIS 10266 (6th Cir., June 18,
2015). Plaintiff Larry Lee sued in 2010
for events occurring in 2007 when he
was in prison custody, arising from
sexual orientation harassment and the
failure of a part-time psychologist (now
deceased) and others to protect him
from a subsequent sexual assault. Lee
filed over a dozen grievances about
his conditions of confinement, but he
only mentioned the psychologist in
one of them, misspelling his name.
Judge Edmunds conducted a fullday bench trial on exhaustion under
the Prison Litigation Reform Act, 42
U.S.C. § 1997e(a) [PLRA], ultimately
deciding that Lee failed to exhaust
323 Lesbian / Gay Law Notes Summer 2015
administrative remedies. The Circuit –
after deciding in what it called an
issue of “first impression” that PLRA
exhaustion determinations did not
require a jury – affirmed the finding
of no exhaustion, because: (1) Lee
continued to appeal his grievances to
higher authority without mentioning
the psychologist again; and (2) Judge
Edmunds’ finding that there was no
record of any grievance mentioning a
rape was not clearly erroneous. This
case went through two summary
judgment proceedings before the PLRA
“trial,” one of which involved whether
the psychologist, a part-time private
contractor with the state, was entitled
to qualified immunity. When he was
denied qualified immunity, he obtained
a stay and appealed to the Circuit, which
affirmed in an unpublished opinion
that noted that the Supreme Court had
already ruled that privatized prison
employees could not invoke qualified
immunity in Richardson v. McKnight,
521 U.S. 399, 401 (1997), and that it
had specifically applied Richardson to
psychiatrists in McCullum v. Tepe, 693
F.3d 696, 697 (6th Cir. 2012). Senior
Circuit Judge Guy does not explain
why the PLRA issues were left to be
determined in a bench trial on a third
summary judgment motion after a weak
interlocutory appeal. If the PLRA is to
serve its intended purpose of reducing
federal court burdens by promptly
winnowing out prison litigants who file
lawsuits before properly exhausting,
that goal failed here – although, at the
end, plaintiff Lee was surely exhausted.
William J. Rold
CALIFORNIA – A straight California
inmate failed to achieve any relief after
he was disciplined and labeled a sex
offender following receipt of a “love
letter” from a gay inmate, with whom
he was friends but not sexually involved
in Dunaway v. Cal. Dep’t of Corr. &
Rehab., 2015 U.S. Dist. LEXIS 85098
(E.D. Calif., June 30, 2015). After inmate
PRISONER LITIGATION
Burson’s letter was found in a search:
Dunaway was given a misbehavior
report for having a prohibited sexual
relationship, which was noted in his
central file; classified as a sex offender;
denied all contact with Burson; and had
a “bed card” naming Burson as a “no
contact” inmate placed outside his cell.
After administrative appeals succeeded
only in lifting the “no contact” with
Burson prohibition, Dunaway sued the
California Department of Corrections
and Rehabilitation (CDCR) and “John
Doe” defendants, alleging a violation of
his rights under the Due Process Clause
of the Fourteenth Amendment. United
States Magistrate Judge Barbara A.
McAuliffe granted a motion to dismiss,
finding that CDCR had Eleventh
Amendment immunity and that granting
leave to amend to name responsible
individual defendants would be futile.
Judge McAuliffe judicially noticed
Dunaway’s criminal convictions for
multiple counts of sexual conduct with
minors, which Dunaway did not contest
and which were sufficient for the sex
offender labeling regardless of whether
Dunaway had an “opportunity to fairly
and fully contest the allegations”
drawn from the “love letter” or other
inmates with “special clearance” had
access to the central file information.
The classification decision also did not
impose an “atypical and significant
hardship” sufficient to invoke due
process protections under Wilkinson
v. Austin, 545 U.S. 209, 221 (2005),
or Sandin v. Conner, 515 U.S. 472,
481-84 (1995). Holding that prisoners
have no due process right to be free of
“false” charges, so long as they receive
a hearing, Judge McAuliffe relies on
two circuit decisions from the 1980’s:
Freeman v. Rideout, 808 F.2d 949,
951 (2d Cir. 1986); and Sprouse v.
Babcock, 870 F.2d 450, 452 (8th Cir.
1989). Freeman was limited by Franco
v. Kelly, 854 F.2d 564, 589-90 (2d Cir.
1988), when the “false” charges were
levied for retaliatory reasons under the
First Amendment. Sprouse cited Franco
for the same proposition, and reserved a
dismissal. The Ninth Circuit recognized
a limited First Amendment right of
inmate association in Rizzo v. Dawson,
778 F.2d 527, 532 (9th Cir. 1985), but
Judge McAuliffe found that “freedom
of association is among the rights least
compatible with incarceration,” quoting
Overton v. Bazzetta, 539 U.S. 126, 131
(2003). Her “cf.” citation omits the
qualifying language on the same page:
“We do not hold, and we do not imply,
that any right to intimate association is
altogether terminated by incarceration
or is always irrelevant to claims made
by prisoners. We need not attempt to
explore or define the asserted right of
association at any length or determine the
extent to which it survives incarceration
because the challenged regulations
[limiting “non-contact” visitors to an
approved list] bear a rational relation
to legitimate penological interests.” Id.
at 131-132. Development of this theory
for gay association in prison awaits a
better test case. Judge McAuliffe found
that Dunaway’s claims of “constant
fear for his life and safety” after being
classified as “having a relationship with
a homosexual inmate” sounded under
the Eighth Amendment’s protection
from risks to safety – see Farmer v.
Brennan, 511 U.S. 825, 833 (1994) – not
the Due Process Clause; and here there
were no allegations exceeding “ridicule
and threats.” Judge McAuliffe found
that issues involving the “bed card,”
which continued to display Bunson’s
name even after the restrictions were
lifted, were effectively “moot” because
Dunaway failed adequately to challenge
CDCR’s contention that the issue was
moot when he was allowed to resume
“contact” with Burson notwithstanding
the card. Dunaway was represented by
Benjamin Albert Williams, Sacramento.
William J. Rold
ILLINOIS – Litigation continues in
the Southern District of Illinois by
transgender inmate Dameon Cole,
a/k/a Divine Desire Cole; her multiple
cases and corresponding opinions were
summarized in the March 2015 issue
of Law Notes at pages 120-121. Most
recently, United States District Judge
J. Phil Gilbert adopted the unopposed
Report & Recommendation [“R & R”]
of United States Magistrate Philip M.
Frazier that allowed Cole to amend
her protection from harm pleadings in
Cole v. Johnson, 2015 WL 4037522
(S.D. Ill., July 1, 2015). The “thrust”
of the amended pleadings is deliberate
indifference to Cole’s safety at the
Lawrence Correctional Facility, in
violation of the Eighth Amendment
over some 14 months in 2013-2014.
The R & R allowed Cole to proceed
against a corrections officer, now
identified as Corey Knop, for opening
Cole’s cell to an HIV+ inmate for the
purpose of facilitating sexual relations
on multiple occasions, as summarized
in Law Notes (December 2014) at page
500. The R & R found a “colorable
Eighth Amendment failure to protect
claim against Knop because Knop was
deliberately indifferent to a substantial
risk of serious harm.” The R & R also
allowed a claim against a correctional
lieutenant, Chad Ray, because he forced
Cole to cell with another inmate when
Ray knew they “share[d] a mutual
animosity.” According to the pleadings,
Ray announced at the time that “I guess
you two will learn to fuck or fight”
and that he would “be back in twenty
minutes to see who’s still alive.” There is
no allegation of any altercation, and the
Prison Litigation Reform Act generally
bars an action by an inmate for mental
distress “without a prior showing of
physical injury” – 42 U.S.C. § 1997e(e).
The R & R nevertheless allowed the
pleading against Ray because Cole “was
exposed to a risk of harm that occurred
as a result of ‘an official’s malicious
or sadistic intent,’” citing Babcock v.
White, 102 F.3d 267, 270 (7th Cir. 1996);
see also Calhoun v. DeTella, 319 F.3d
936, 942 (7th Cir.2003) (allowing a
prisoner nominal or punitive damages
Summer 2015 Lesbian / Gay Law Notes 324
PRISONER LITIGATION
in such situations). The R & R denied
amendment to plead against another
officer for ignoring Cole’s grievances
about the same cellmate situation
because the allegations did not suggest
“malicious or sadistic intent.” Cole also
sought amendment to address excessive
force when another officer cuffed her
so tight as to cut off blood circulation
and shoved her head against the wall
in the shower. The R & R found the
allegations sufficient to state a claim
under Hudson v. McMillian, 503 U.S. 1,
4 (1992), but it declined to join the claim
because of its “weak connection” with
the protection from harm claims. This
without-prejudice dismissal is likely to
produce another separate federal claim.
Finally, the R & R denied Cole’s Equal
Protection protest of denial of “audio
visual privileges” as too “sparse” to
state a claim when privileges can be
denied for a “multitude of reasons.”
William J. Rold
NEVADA – United States District
Judge Robert C. Jones dismissed pro
se prisoner Rickey Lee Hill’s civil
rights case on initial screening under
28 U.S.C. § 1915A(a), in Hill v. Rowley,
2015 U.S. Dist. LEXIS 82050, 2015 WL
3887188 (D. Nev., June 24, 2015). Hill
sued under 42 U.S.C. § 1983, claiming
abuse and discrimination on the basis
of sexual orientation, race, religion and
nature of conviction, in violation of the
Eighth and Fourteenth Amendments.
Hill alleged that an officer “gripped
his buttocks” while cuffing him before
seeing a nurse and ordered him to strip
and “show his vagina,” while referring
to his conviction of a sexual act with
a boy – within the hearing of other
inmates and another officer. Although
this conduct involved the same officer
on the same tier on the same date,
Judge Jones “perceived” the counts
separately. He found the “gripping”
too inconsequential to violate the
Eighth Amendment, citing Hudson v.
McMillian, 503 U.S. 1, 9 (1992); and
Berryhill v. Schriro, 137 F.3d 1073, 1076
(8th Cir. 1998) (a “brief unwanted touch
on [the] buttocks,” while inappropriate,
does not constitute “objectively serious
injury”). Judge Jones then dismissed
the Equal Protection claim, because
the “gripping” was the only evidence
of disparate treatment, and Hill did
“not allege whether he was the only
black sex offender on the tier.” While
recognizing that the constitution
protects inmate safety under Farmer
v. Brennan, 511 found that the verbal
taunts and public statements at most
constituted a “failure to prevent
exposure to risk of harm,” which is
not actionable unless Hill had actually
been assaulted in a complaint where
he sought only damages. Judge Jones
then added Hills’ religion (Jewish) to
the mix, noting that his race, sexual
orientation, and religion all required
“heightened” Equal Protection scrutiny
– but he dismissed the claim, finding
that Hill did “not allege knowledge of
the lack of equally bad treatment of
[others similarly situated], only that
he never witnessed it,” and judicially
noticing unspecified lawsuits by a white
sex offender from the same prison who
claimed violations of his rights. Hill’s
third allegation involved a separate date
and officer who stripped him prior to
a disciplinary hearing and forced him
to walk the tier in his boxers and no
shirt so that “you can show your tits,”
whereupon other inmates whistled and
threatened to “kill his gay ass.” Hill also
claimed that this officer ordered him to
bend over and cough repeatedly while
he showered but did not subject other
inmates to this treatment, alleging that
he was “targeted” because “I’m black,
and I’m labeled a gay-sex-offender
who practices Judism [sic].” Judge
Jones found that Hill’s allegations were
“conclusory” and failed to allege that
this officer “knew of and disregarded
an excessive risk”; that the incident is
plausibly likely to increase any risk of
harm to [Hill] beyond the risk of harm
from other inmates having already
325 Lesbian / Gay Law Notes Summer 2015
known that he was homosexual and a
sex offender”; or that any harm actually
ensued. Judge Jones found that Hill failed
to include “allegations… as to dissimilar
treatment of non-black, non-Jewish,
and/or heterosexual sex offenders.”
Judge Jones did not mentioned possible
transgender claims based on reference
to “vagina” and “tits,” but he denied Hill
all leave to amend any of this claims
or to respond to the deficiencies in the
complaint – a significant departure
from settled case law that a pro se
litigant should be allowed at least one
chance to amend. See, generally, Denton
v. Hernandez, 504 U.S. 25 (1992)
(passim). Judge Jones (an appointee of
George W. Bush), wrote the decision in
Sevcik v. Sandoval, upholding Nevada’s
prohibition of marriage equality that
was reversed by the Ninth Circuit sub
nom., Latta v. Otter, 771 F.3d 456 (9th
Cir. 2014), which ordered Judge Jones
to enter an injunction promptly. The
next day, Judge Jones recused himself
in Sevcik, 2:12-cv-00578-RCJ (Doc. N.
117, October 8, 2014); and the injunction
against Nevada’s same-sex marriage
prohibition was entered the following
day by United States District Judge
James C. Mahan. The Circuit denied
rehearing in Latta at 779 F.3d 902 (9th
Cir. 2015). In a rare published comment
on a colleague, Judge Jones has been
criticized in another circuit opinion
as showing “arrogance,” engaging in
“dilatory tactics,” and assuming power
“not acceptable in our judicial system.”
Townley v. Miller, 693 F.3d 1041,
1043-45 (9th Cir. 2012) (Reinhardt, J.,
concurring). This Hill case, if appealed,
presents further work for the Circuit.
William J. Rold
OHIO – United States District Judge
Christopher A. Boyko dismissed pro
se prisoner Sherwood L. Starr’s lawsuit
against a sheriff and a warden alleging
disparate treatment of LBGT inmates in
Starr v. Bova, 2015 WL 4138761, 2015
U.S. Dist. LEXIS 88683 (N.D. Ohio,
PRISONER LITIGATION
July 8, 2015). Starr contended that LGBT
inmates were housed only in twelve
designated beds in two dorms and were
not permitted individual cells unless
moved to administrative segregation.
As dorm inmates, they were forced to
use showers and toilet facilities one at
a time. Judge Boyko found insufficient
allegations of discrimination to sustain
the complaint under 28 U.S.C. § 1915(e),
and he certified that any appeal would
“not be taken in good faith.” Judge
Boyko wrote that “sexual orientation
and transgender have not been identified
as suspect classifications in the Sixth
Circuit,” but he recognized that they
constitute an “identifiable group” for
equal protection purposes, citing Davis
v. Prison Health Services, 679 F.3d
433, 441 (6th Cir.2012). He applied
traditional rational basis scrutiny,
finding that Starr failed either to
“negat[e] every conceivable basis which
might support the government action, or
[to] demonstrate[e] that the challenged
government action was motivated by
animus or ill-will,” quoting Davis at
438. Starr failed to allege sufficient
information to ascertain who else
was housed in other beds in the
dormitory, which Judge Boyko found
“by inference” included non-LGBT
inmates; Starr failed to describe the
classification more generally, including
distinctions between pre-trail detainees
and convicted misdemeanants; and he
did not address “non-discriminatory
reasons” for dormitory housing. Starr’s
claims about dormitory restroom
distinctions failed to show that
LGBT inmates were discriminated
against, as opposed to rules applying
to all dormitory inmates without “a
discriminatory purpose.” Judge Boyko
found that Starr’s allegations included
“legal conclusions” without support.
Starr’s injunctive request was denied
as moot because he was released from
the jail after 35 days. [Note: This writer
remembers vividly the clamor both to
establish and to reject separate housing
for LGBT inmates on Rikers Island in
New York City. Safety and civil rights
issues are far more complex than either
Judge Boyko or plaintiff Starr allowed
here.] William J. Rold
OHIO – Proceeding in state court, as
opposed to federal court, may sometimes
advantage plaintiffs, who can avoid
strictures of the Prisoner Litigation
Reform Act (like exhaustion) or the
civil rights hurdles (such as personal
involvement) under 42 U.S.C. § 1983.
Here, an Ohio prisoner sought damages
in the Ohio Court of Claims because an
officer called him (apparently falsely) a
“dick sucker” in the presence of other
inmates – but his case for defamation
was dismissed under Ohio tort law in
Peters v. Department of Rehabilitation
and Correction, 2015 WL 3964204
(Ohio App., June 30, 2015). Writing
for a unanimous three-judge panel
of the Ohio Court of Appeals, Judge
Jennifer L. Brunner affirmed dismissal
of plaintiff John E. Peters’ pro se
complaint alleging defamation per se
and harassment. Under Ohio defamation
law, per se defamation cannot lie absent
words importing an indictable offense, a
contagious disease, or an injury to trade
or business. Words tending to “subject
a person to public hatred, ridicule, or
contempt” must be written (libel) not
spoken (slander) to constitute a per se
tort – Judge Brunner assuming, without
saying so, that falsely stating a plaintiff
engaged in fellatio was defamatory if
put in writing. Absent such writing,
Peters had to show special damages,
as with ordinary defamation, which he
failed to do, because he did not allege
financial loss or adverse conduct by
someone “other than the defamer or the
one defamed.” In the prison context, this
amounts to a failure to show that either
inmates or other officers did something
to Peters’ detriment after the remark.
Judge Brunner distinguished Stokes v.
Meimaris, 111 Ohio App.3d 176, 185 (8th
Dist.1996), where the plaintiff alleged
and proved special damages against an
ex-husband who had told police that she
was a lesbian, resulting in initiation of
an investigation by the local Salvation
Army of which plaintiff was a board
member. Judge Brunner also affirmed:
(1) dismissal of pleadings alleging
inappropriate supervision of the officer,
harassment and intimidation, because
they did not amount to an allegation
of negligence – the elements of which
apparently were absent in any event
and could not be imposed on the civil
common law by the existence of general
regulations governing officer conduct;
and (2) denial of leave to amend as futile,
applying an abuse of discretion standard
of review. Peters was represented on the
appeal by Richard F. Swope, Swope &
Swope, Reynoldsburg. William J. Rold
PENNSYLVANIA – In Armstrong
v. Wetzel, 2015 WL 2455418 (W.D.
Pa., May 22, 2015), United States
Magistrate Judge Lisa Pupo Lenihan
granted summary judgment against
pro se prisoner Kareem Armstrong in
a “protection from harm” case, holding
that no reasonable jury could find in his
favor because he had “no evidence” that
his assault was not staged. Armstrong
occupied a single cell for many years,
until Pennsylvania officials determined
that he no longer qualified for such
protection. In 2011, after undressing
and masturbating in front of cellmates,
he sought a single cell as an “inmate
with known or documented homosexual
behavior.” He filed grievances stating
his “strong desire for sex,” while
maintaining the institution was “on
notice” (and therefore responsible) if
he was assaulted. Under a decision
subheading (“Plaintiff ‘Comes Out’
as a Homosexual”), Judge Lenihan
wrote that Armstrong declared that
he “wanted to engage in an openly
alternative lifestyle” and “to be housed
with someone of the ‘same sexual
orientation.’” Stating that institutional
rules prohibit sexual activity, officials
offered him “administrative custody”
Summer 2015 Lesbian / Gay Law Notes 326
PRISONER LITIGATION
but he declined, saying that he was
not concerned about his safety and
that his “only goal is to have oral and/
or anal intercourse with another man.”
Defendants then deemed him a “danger”
and placed him in administrative
custody, where he and inmate James
Copeland agreed to share a cell. Weeks
later, Armstrong alleges that Copeland
attacked him twice over three days
and that defendants were liable for not
separating the men after the first attack.
An investigation found “no indication”
that the first assault occurred and
concluded that Armstrong’s behavior
was “manipulative” and that he was
“appropriately housed.” Judge Lenihan
found “no evidence” to support
Armstrong’s allegations, noting that the
complaint about the first assault was
date-stamped “literally hours” before
the second assault. While the Eighth
Amendment protects inmates from
deliberate indifference to their safety,
Farmer v. Brennan, 511 U.S. 825, 833
(1994), a jury must be able to find that
defendants were aware of facts from
which an “inference could be drawn
that a substantial risk of serious harm
exists.” Id. at 834-7. Judge Lenihan
could have granted summary judgment
under Farmer on this basis alone,
due to the weakness of evidence of
defendants’ knowledge of risk prior to
the assaults and Armstrong’s disavowal
of safety concerns, but the decision does
not stop there. In granting summary
judgment, Judge Lenihan relied on a
letter Kareem Armstrong wrote to one
Michael Armstrong that stated, in part:
he had “gone nake[d]” twice to get his
cell back; “I love pussy”; “gay shit aint
never gonna be my style”; and “me
and my celly pulled a stunt.” Despite
Armstrong’s account of the assaults,
Judge Lenihan found that he presented
“no evidence” because his testimony
was impeachable and he failed to prove
a negative (that the assault was “not
staged”). This ruling contradicts a long
line of authority that prior inconsistent
statements cannot be used to prevent a
jury question. See, e.g., Kassim v. City
of Schenectady, 415 F.3d 246, 251 (2d
Cir. 2005): “When a party has made a
prior statement inconsistent with one
the party seeks to advance at trial, a
question of credibility arises, which is
for the jury, not the judge, to assess,”
citing F.R. Evid. 607, 613. Judge Lenihan
went further, affirmatively finding that
the record “overwhelmingly” shows that
the attack was “staged,” writing: “The
evidence is clear, inmate Armstrong
has attempted to use any means at his
disposal to secure single cell status when
he obviously does not warrant such
placement.” She found that the record
“utterly discredits Plaintiff’s version
of events,” quoting Scott v. Harris, 550
U.S. 372, 380 (2007): “When opposing
parties tell two different stories, one
of which is blatantly contradicted by
the record, so that no reasonable jury
could believe it, a court should not adopt
that version of the facts for purposes
of ruling on a motion for summary
judgment.” Scott involved a videotape
of erratic driving that destroyed the
Fourth Amendment plaintiff’s assertion
that he was driving safely and should
not have been stopped. Here, there is no
videotape, and this writer could find no
other case applying Scott’s “blatantly
contradicted” exception to summary
judgment rules to a prior inconsistent
statement. Judge Lenihan’s extension
of Scott to this case and her loaded
adverbs (“overwhelmingly”; “utterly”;
“obviously”) ignore the milieu in
which this pro se plaintiff continues
to live. In prisons, the “don’t-askdon’t-tell” architecture of homophobia
remains largely intact: a prisoner is not
necessarily “manipulative” because he
“comes out” assertively inside while
denying his sexuality in street slang to
outsiders who may be his family – nor
does his characterizing an assault as a
“stunt” make it impossible for a jury to
believe he was a victim of abuse. Judge
Lenihan’s decision shows reckless
disregard for Armstrong’s future safety.
Her finding that he is “obviously” not in
327 Lesbian / Gay Law Notes Summer 2015
need of protection will be Exhibit One
in any future protection from harm case.
William J. Rold
SOUTH CAROLINA – HIV-positive
prisoner Charles Edward Thomas sued
the South Carolina Department of
Corrections and a former prison medical
director under 42 U.S.C. § 1983, the
Americans with Disabilities Act, the
Rehabilitation Act, and state law, alleging
that officials segregated him for ten
years because of his HIV status (forcing
disclosure of his condition), denied
him prison employment, and deprived
him of free medical care. United States
District Judge David C. Norton adopted
the Report and Recommendation [“R &
R”] of United States Magistrate Judge
Paige J. Gossett that the pro se lawsuit
be dismissed on the pleadings under the
Prison Litigation Reform Act, for failure
to exhaust administrative remedies, per
42 U.S.C. § 1997e(a), in Thomas v. South
Carolina Department of Corrections,
2015 WL 3789418 (D.S.C., June 17,
2015). While the State was immune from
suit under the Eleventh Amendment, the
physician was not. Nevertheless, Thomas
admitted he did not exhaust, claiming he
was in imminent danger of retaliation if
he filed a grievance. The R & R found
no “imminent danger” exception to
PLRA exhaustion and dismissed without
prejudice, citing Reynolds v. Stouffer,
2014 WL 576299 at *4 (D. Md. Feb. 11,
2014) (holding that the PLRA does not
contain an “imminent danger” exception
to exhaustion and collecting cases).
Moreover, the R & R found Thomas’
claimed fear of retaliation to be “purely
speculative as he provide[d] no factual
allegations to indicate that he has ever
experienced retaliatory conduct for
filing a grievance.” The court declined
to exercise pendent jurisdiction over
state claims. William J. Rold
VIRGINIA – Alicia Jade Brown, a
transgender federal prisoner, brought
PRISONER / LEGISLATIVE
a pro se Bivens action [Bivens v. Six
Unknown Federal Narcotics Agents,
403 U.S. 388 (1971)] against FBOP
officials at the Federal Correctional
Institution in Petersburg, Virginia,
where many transgender inmates are
clustered – and against the Federal
Bureau of Prisons Director – alleging
deliberate indifference to her serious
medical needs under Estelle v. Gamble,
429 U.S. 97, 105-06 (1976), and denial
of Equal Protection based on her gender
and perceived sexual orientation. United
States District Judge John A. Gibney,
Jr., granted summary judgment to
defendants on all claims in Brown v.
Wilson, 2015 U.S. Dist. LEXIS 81456,
2015 WL 3885984 (E.D. Va., June 23,
2015). Brown raised medical claims
about: (1) her hormone dosage level;
(2) referral to an endocrinologist; (3)
purchasing of “women’s” commissary
items; and (4) denial of electrolysis
hair removal. As presented by Judge
Gibney, the material facts seem to be
largely undisputed. FBOP physicians
“initiated” hormone therapy after
Brown’s incarceration. She received
Estradiol Valerate in increasing dosages
(from 20 mg every four weeks to 20 mg
every two weeks. Later, Spironolactone,
25 mg daily, was added – later increased
to 37.5 mg, then to 50 mg, then to 100
mg. Brown also has seizure disorder
(from a prior head trauma) and
hypertension, and she takes medication
for cardiac and electrolyte problems.
Defendants said they denied Brown’s
further requested hormone increases
based on their “professional medical
judgment,” considering her various
medical conditions, drug interactions,
and lab reports – some of which showed
supratherapeutic (too high) levels of
medication. A referral to an “outside”
endocrinologist about hormone levels
was denied by utilization review, and
a second request was pending at the
time of the decision. Judge Gibney
found on these facts that the defendants
were not deliberately indifferent,
citing the Fourth Circuit’s decade-long
consideration of the care of a Virginia
transgender prisoner in De’lonta v.
Angelone, 330 F.3d 630, 635-36 (4th
Cir. 2003) (no treatment) and De’lonta
v. Johnson, 708 F.3d 520, 526 (4th
Cir. 2013) (inadequate treatment). By
contrast, Brown received individualized
decisions, and the case amounted to
a disagreement about appropriate
treatment, which is not actionable under
the Eighth Amendment. He rejected
Brown’s attempt to constitutionalize
the World Professional Association
for Transgender Health Standards of
Care, and found that Brown was not
“competent” to testify as her own expert.
Similarly, regarding the endocrinologist
(which is being reconsidered): “Absent
exceptional circumstances, which are
not present here, the medical decision of
whether to refer an inmate to a specialist,
generally fails to provide a basis for
demonstrating deliberate indifference.”
Judge Gibney accepted defendants’
security arguments that permitting
“men” to wear “female” make-up
increases risks of misidentification and
escape, noting that defendants permitted
Brown to wear a bra for enlarged breasts.
He also accepted defendants’ insistence
that Brown try nonformulary “Nair” for
hair removal, which decision could be
“revisited” if not successful. Applying
rational basis scrutiny to Brown’s
Equal Protection claim (and the twin
Fourth Circuit De’lonta cases), Judge
Gibney found no violation under City of
Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 432, 439 (1985), finding that
no heightened scrutiny was available
and that Brown was not unreasonably
singled-out from others similarly
situated. This case illustrates two
additional points: The FBOP has come
a long way since its initial handling of
transgender prisoners on a “freeze in
place” policy; and it is impossible for a
transgender patient to prevail to survive
summary judgment on medical care
without an expert witness, if the treating
physicians document facially sound
medical judgment. William J. Rold
LEGISLATIVE & ADMINISTRATIVE
FEDERAL – The House of Representatives
approved an amendment to a pending
appropriations bill for the Department
of Housing and Urban Development
that would require funding recipients
to comply with Executive Order
11246, which – as amended last
year by President Obama – forbids
discrimination by federal contractors
because of sexual orientation or gender
identity. The June 9 vote has symbolic
importance, as Republicans control the
House and so Republican votes were
needed to approve the amendment, thus
showing the possibility that if a general
federal ban on sexual orientation and
gender identity discrimination were
allowed to come to a vote in the House,
it might pass. However, the Republican
leadership of the House is unlikely to
allow such a vote, due to opposition from
a majority of its caucus. And the House
vote was largely symbolic, since it was
attached to a measure which is under a
veto threat because the Administration
is opposed to several substantive parts
of the bill, including a cut in funding
for Amtrak at a time when additional
spending is needed to improve the
safety of the national railway passenger
service in the wake of recent accidents.
Washington Blade, June 10.
FEDERAL – The Senate voted 5245 to add an amendment to the Every
Child Achieves Act which would have
added protection for students from
discrimination because of sexual
orientation or gender identity, but
the amendment failed because the
Republican leadership specified this
as an issue to which the filibuster
rule applied, requiring 60 votes for
passage. Every Democrat and seven
Republicans voted for the amendment.
The overwhelming majority of Senate
Republicans would not support a
Summer 2015 Lesbian / Gay Law Notes 328
LEGISLATIVE
measure to ban discrimination against
LGBT students because. . . Well,
because most Republicans believe, as
a matter of politics, that discrimination
against LGBT people is just fine and
dandy. Perhaps it didn’t help that this
vote came on July 14, just a few weeks
after many Republicans were publicly
discomfited by the Supreme Court’s
decision in Obergefell v. Hodges
and were perhaps looking for an
opportunity to go on record with their
core constituency as being anti-gay. In
addition, congressional Republicans
are very responsive to arguments that
requiring schools not to discriminate
against transgender students would run
into the “bathroom issue.”
DEFENSE DEPARTMENT – Addressing
the audience at the Defense Department’s
Gay Pride Month event on June 9,
Secretary of Defense Ashton Carter
announced that DoD was adding
“sexual orientation” to the forbidden
grounds of discrimination in the
Department’s equal opportunity policy.
This brings policy full-circle, from
the absolute exclusion of gays from
military service during World War II,
through various equivocating policies
that usually led to discharges, to the
repeal of “don’t ask, don’t tell” early
in the Obama Administration, to the
newly-explicit ban on sexual orientation
discrimination. At the same time,
efforts were mounting to persuade DoD
to end the categorical ban on service by
transgender people. This ban is part
of medical regulations promulgated
by the DoD based on the argument
that gender dysphoria is a medical
condition that disqualifies individuals
from uniformed service. On June 8,
the American Medical Association
approved a resolution stating that there
is “no medically valid reason to exclude
transgender individuals from service in
the U.S military.” Earlier in the year,
some transgender military members
began to “come out” and give press
interviews, putting a face on the issue
for the public and elected officials.
Among the effective spokespersons
was Shane Ortega, a transgender man
who has served on active duty in the
Middle East and whose photoshoot for
The Advocate caused lots of doubletakes, since he presents the kind of
body one would see on a professional
football player. (Those running on the
beach photos would by themselves be
sufficient to startle people to shed any
stereotypes they were carrying around
about transgender men!) Early on July
13, the Associated Press reported that
the Defense Department was about
to announce a six-month transition
period during which they were going
to evaluate all the issues presented by
transgender service, figure out how
to deal with them, and eventually end
the current regulatory ban. Although
the ban on enlistment by transgender
people would remain in place during
this transitional period, discharging
people because of their gender identity
would be effectively placed on hold
by referring all cases to the high DoD
official who had been placed in charge
of the study process. Later on the 13th,
the Department posted a statement on
its website by Secretary Ashton Carter
confirming the plan, resulting in article
about the policy in most major media by
July 14.
JUSTICE DEPARTMENT – On Feb. 3,
the Equal Employment Opportunity
Commission’s Office of Field Programs
sent a memorandum to all the EEOC’s
district directors, informing them about
how to deal with complaints of sexual
orientation discrimination filed under
Title VII of the Civil Rights Act of 1964,
which bans employment discrimination
because of sex. Significantly, the EEOC
now takes the position that sexual
orientation
discrimination
claims
should be processed and investigated
as sex discrimination claims in line
with a growing body of internal agency
329 Lesbian / Gay Law Notes Summer 2015
rulings and a handful of federal district
court decisions, and the agency has
reported some success in getting
employers to settle such claims. The
EEOC had previously ruled formally
that gender identity discrimination
claims should be processed as sex
discrimination claims, a proposition
that is winning wider support among
the lower federal courts, and the agency
has recently filed some lawsuits in
federal court on behalf of transgender
plaintiffs. The Supreme Court has yet
to rule on either type of claim under
Title VII. On June 4, the ACLU wrote
to Attorney General Loretta Lynch,
asking that the Justice Department
“formally announce that it will take the
position in litigation that the prohibition
on sex discrimination in Title VII of
the Civil Rights Act of 1964 extends
to claims of discrimination based
on an individual’s sexual orientation
because it constitutes sex stereotyping
and because it is sex discrimination
per se.” The letter referenced a Justice
Department
memorandum
from
December 2014 where the Department
took a similar position on gender
identity discrimination claims. The
letter cites as examples of federal court
acceptance of such sexual orientation
claims the recent cases of Deneffe v.
SkyWest, Inc., 2015 WL 2265373 (D.
Colo., May 11, 2015); Hall v. BNSF Ry.
Co., 2014 WL 4719007 (W.D. Wash.,
Sept. 22, 2014); TerVeer v. Billington,
34 F. Supp. 3d 100 (D.D.C. 2014); Koren
v. Ohio Bell Tel. Co., 894 F. Supp. 2d
1032 (N.D. Ohio 2012); and Heller v.
Columbia Edgewater Country Club,
195 F. Supp. 2d 1212 (D. Or. 2002).
None of these courts went so far as to
treat sexual orientation discrimination
claims as per se violations of Title VII,
but their reasoning has begun to stretch
the concept of “sex stereotyping”
beyond the rather restrictive view that
had prevailed in earlier rulings. If this
Title VII coverage were to be endorsed
by the Justice Department and more
widely accepted by the courts, the
LEGISLATIVE
necessity for enactment of a bill such
as the Employment Non-Discrimination
Act might be rendered superfluous.
On the other hand, having an express
prohibition of discrimination would
undoubtedly be more effective in
getting a broad range of employers to
comply with the non-discrimination
requirement and better serve the
educational function of a statute to
influence public opinion.
LABOR DEPARTMENT
–
The
Occupational Safety and Health
Administration (OSHA) issue a Guide
to Restroom Access for Transgendered
Workers, posted on the agency’s website
early in June. A Guide to Restroom
Access for Transgender Workers,
OSHA Publication 3795 (https://www.
osha.gov/Publications/OSHA3795.
pdf). “It is essential for employees to
be able to work in a manner consistent
with how they live the rest of their daily
lives, based on their gender identity,”
wrote OSHA. “Restricting employees
to using only restrooms that are not
consistent with their gender identity, or
segregating them from other workers by
requiring them to use gender-neutral or
other specific restrooms, singles those
employees out and may make them
fear for their physical safety.” This
is the policy now officially followed
by the executive branch of the federal
government in its own workplaces, as a
result of prior policy statements signed
by the President, although compliance
has not been complete, as indicated
by recent litigation at the EEOC and
the Justice Department involving a
transgender civilian employee of the
Defense Department who had to sue
to vindicate restroom access rights.
OSHA’s “Guidance” is described as a
“best practices” guideline, and is not
legally binding as such on private sector
employers, but it aligns OSHA with
the EEOC and the DOJ in its approach
to the workplace rights of transgender
employees. Washington Post, June 11.
HOUSING & URBAN DEVELOPMENT
– The Department of Housing and
Urban Development issued Notice H
2015-06 to all of its program directors,
addressing program eligibility in
multifamily assisted and insured
housing programs under HUD’s equal
access rule. The July 13 notice stated
that eligibility decisions should be made
“without regard to actual or perceived
sexual orientation, gender identity, or
marital status” in HUD-assisted or
insured housing. This would extend
to all public housing projects that
receive federal financial assistance. The
notice spells out in detail enforcement
options for dealing with allegations of
discrimination, and is available on the
agency’s website.
anywhere in federal securities statutes
or implementing regulations, releases,
SEC orders or guidance documents, they
should be construed to include samesex spouses and same-sex marriages,
regardless of the individual’s domicile.
At the time this document was issued,
such a statement was necessary to insure
that this meaning would prevail even if
the couples involved lived in a state that
did not recognize their marriage. Just
a week later, it became superfluous in
light of Obergefell v. Hodges, since the
Supreme Court’s decision required every
state to recognize same-sex marriages,
regardless whether they were performed
within the state or outside the state,
on the same basis that a state would
recognize different-sex marriages.
U.S. OFFICE OF PERSONNEL
MANAGEMENT (OPM) – OPM issued
Letter No. 2015-12 on June 23 to insurers
participating in the Federal Employees
Health Benefits Program, stating that
effective January 1, 2016, “no carrier”
participating in the program “may
have a general exclusion of services,
drugs or supplies related to gender
transition or ‘sex transformations.’
This letter clarifies OPM’s earlier
guidance recognizing the evolving
professional consensus that treatment
may be medically necessary to address
a diagnosis of gender dysphoria,” wrote
John O’Brien, Director, Healthcare and
Insurance.
HOMELAND SECURITY – The U.S.
Immigration and Custom Enforcement
(ICE) Office of Enforcement and
Removal Operations issued guidance
to personnel on care of transgender
individuals in custodial settings on
June 29. This refers mainly to people
apprehended as undocumented and
held in detention pending decisions on
whether they will be allowed to stay in
the U.S. or will be deported to countries
of origin. There were numerous
complaints that transgender individuals
were receiving terrible treatment in
detention. LGBT groups criticized the
new guidance at not going far enough
and not containing appropriate methods
of enforcing the guidelines, and there
were strong contentions that too many
transgender individuals are being
unnecessarily detained.
SECURITIES
AND
EXCHANGE
COMMISSION (SEC) – The SEC issued
a “Commission Guidance Regarding
the Definition of the Terms ‘Spouse’
and ‘Marriage’ Following the Supreme
Court’s Decision in United States
v. Windsor” on June 19, 2015. The
document, technically referred to as a
“Release,” notifies all those concerned
with enforcement of the laws regulating
corporate securities that when the
terms ‘spouse’ and ‘marriage’ are used
INTERIOR DEPARTMENT – U.S.
Secretary of the Interior Sally Jewell
announced on June 19 that the
Henry Gerber House in Chicago was
being designated a National Historic
Landmark. Gerber was the founder of the
nation’s earliest gay rights organization,
the Society for Human Rights, formed in
Summer 2015 Lesbian / Gay Law Notes 330
LEGISLATIVE
Chicago in 1924. Interior Department
Documents, June 19.
BOARD OF IMMIGRATION APPEALS
– Lambda Legal announced that the
Board of Immigration Appeals had
granted asylum to a Mexican man
because of persecution it found he was
likely to experience in Mexico because
he is HIV-positive and thus would be
perceived to be gay. Roberto Santin was
represented by Heartland Alliance’s
National Immigrant Justice Center
with amicus support from Lambda
Legal and the HIV Law Project. Hena
Mansori, an attorney with the NIJC
Detention Project, was his attorney
for the case. As a result of the ruling,
Santin was released from detention on
June 22. Lambda Legal News Release,
June 25.
ARIZONA – The Maricopa County
Attorney’s Office, which had been
providing free legal assistance for noncontested adoption cases, has terminated
that activity, contracting it out to private
attorneys, due to County Attorney Bill
Montgomery’s opposition to samesex couples adopting. Montgomery
stated at a news briefing on July 9,
“The Supreme Court case addressed
marriage, it didn’t address adoption,
so I didn’t read it to affect that at all,”
referring to Arizona statutes limiting
joint adoptions to married couples. The
ACLU had threatened to sue the office
for failing to provide same-sex couples
with the same services as different-sex
couples in connection with adoptions,
but Montgomery decided to avoid that
problem by farming out the task to
private counsel. trivalleycentral.com,
July 11.
ARKANSAS – Second attempt: The
Fayetteville City Council voted 6-2 on
June 17 to approve a new LGBT nondiscrimination ordinance, which would
cover employment, housing and public
accommodations. A previous ordinance
had been repealed in a referendum. The
new ordinance will not go into effect
unless approved by voters in a special
referendum on September 8. The
new ordinance has a broad religious
exemption built in, and provides for
mediation of complaints. Arkansas
Times, June 17.
CONNECTICUT – Governor Dannel
Malloy signed into law on June 29 a bill
that changes birth certificate procedures
making it possible for transgender
people who were born in Connecticut
to have their birth certificates revised
without presenting proof of surgical
gender reassignment procedures. Health
care professionals would have to certify
that a person has receive appropriate
treatment for the purpose of gender
transition, which could be surgical,
hormonal, or other treatment.
FLORIDA – Bowing to the reality created
by litigation and executive acquiescence
a few years ago, Florida has repealed its
statutory ban on “homosexuals” adopting
children. Associated Press reported on
June 12 that Governor Rick Scott signed
a bill removing the offending language
as part of a law intended to promote
adoption. An attempt by Republicans
in the state’s House to exempt private
adoption agencies from having to
provide services to same-sex couples
was unsuccessful.
IDAHO – Bellevue’s City Council
unanimously passed an ordinance that
will prohibit discrimination because of
sexual orientation or gender identity
in housing, employment and public
accommodations on June 15. Various
amendments were included to address
concerns about room rentals in private
homes or application to certain
organizations or agencies. The council
331 Lesbian / Gay Law Notes Summer 2015
voted to waive the usual second and
third readings so that the ordinance
could go into effect in July. mtexpress.
com, June 17. * * * Latah County
Commissioners approved a change in
the county’s personnel policy to include
sexual orientation and gender identity
as prohibited grounds of discrimination.
Lewiston Morning Tribune, June 30.
ILLINOIS – Chicago Alderman James
Cappleman has proposed requiring
gender neutral washrooms in places of
public accommodation. Cappleman said
he was trying to initiate a discussion
that might lead to a proposed ordinance.
Chicago Sun-Times, June 26.
KENTUCKY – Midway, Kentucky
(population approximately 1,700) is the
eighth Kentucky municipality to enact
an ordinance outlawing discrimination
because of sexual orientation or gender
identity, joining the growing list
that includes Lexington, Louisville,
Frankfort,
Danville,
Covington,
Morehead, and Vicco (perhaps the
smallest municipality in the country
with such an ordinance). The measure
was proposed by Mayor Grayson
Vandegrift and approved on June 1 by
a 4-2 vote. It applies to employment,
housing and public accommodations.
Proposed
“religious
freedom
restoration act” style language was
removed from the measure before it
was approved. Kentucky.com, June 9;
FairnessCoalition.org, June 1 press
release.
MASSACHUSETTS – Mayor Martin
Walsh of Boston signed an executive
order on June 11 establishing genderneutral restrooms on the fifth floor of
Boston City Hall outside the Mayor’s
Office and the City Council Chamber,
making Boston among the first city
halls in New England to institute
gender-neutral restrooms in order to
LEGISLATIVE
accommodate the needs of transgender
individuals. U.S. Official News, June 11.
MICHIGAN – Governor Rick Snyder
signed into law bills allowing adoption
agencies to refuse to provide services
to which they have religious objections.
The governor’s action on June 11 shortcircuited an attempt by LGBT rights
advocates to organize opposition to a
package of three bills that were suddenly
called up for a vote the previous day
despite not being listed on the published
legislative agenda. Thus House Bills
4188, 4189 and 4190 became Public
Acts 53, 54, and 55 of 2015. P.A. 53
declares that “a private child placing
agency does not engage in state action
when the agency performs privateadoption or direct-placement services”
or makes a referral for such services.
“To the fullest extent permitted by state
and federal law, the state or a local unit
of government shall not take an adverse
action against a child placing agency on
the basis that the child placing agency has
declined or will decline to provide any
services that conflict with, or provide
any services under circumstances
that conflict with, the child placing
agency’s sincerely held religious beliefs
contained in a written policy, statement
of faith, or other document adhered
to by the child placing agency.” The
measure requires an agency that is
declining to provide services on this
basis to “refer the applicant to another
child placing agency that is willing and
able to provide the declined services.”
Interestingly, the statute does not appear
to require that the agency be operated
under the auspices of a religious body in
order to be able to claim this immunity
from liability. The measure appears
to require that any agency seeking to
assert the right to deny services must
have a written policy statement to that
effect posted on its website. The other
two bills amended various statutory
provisions to ensure that agencies
declining such services would not be
subject to any adverse consequences.
The statutes were clearly drafted to
incorporate the argument that refusal
by non-governmental child-placing
agencies to provide services would
not be deemed state action, regardless
whether they receive any state funding
for their activities, and thus would be
immune from constitutional challenge,
but such a declaration would not stop a
federal court from evaluating the degree
of state involvement. The ACLU of
Michigan responded to this enactment
by suggesting that constitutional
lawsuits might be filed against agencies
declining services to same-sex couples
seeking to adopt. However, plaintiffs
might have a standing problem in
mounting a facial equal protection
challenge to the statute, inasmuch as it
requires referrals to agencies that will
provide the services, and also declares
that it is not intended to deny any
qualified applicants the ability to adopt
children. * * * Governor Snyder also
signed into law on June 30 a measure
that will prohibit local governments in
Michigan from enacting ordinances
requiring employers to provide workers
with any benefits not mandated by
federal or state law. One casualty of
the bill could be domestic partnership
benefits, but after Obergefell v. Hodges,
employees could marry same-sex
partners and demand the same marital
benefits as are provided to straight
employees.
NEVADA – On June 25, Nevada
Insurance
Commissioner
Scott
Kipper issued a bulletin advising that
“prohibitions of medically necessary
health care services to covered persons
on the basis of discrimination because
of the covered persons’ gender identity
or expression” would be considered
a violation of the state’s regulations
governing insurance companies. The
companies would be forbidden from
denying transgender individuals coverage
for medically necessary health services
that are provided for other customers.
The ACLU of Nevada announced this
development in a June 29 press release.
NEW JERSEY – On June 25, the New
Jersey Senate gave final approval to
a bill that would make it easier for
transgender individuals to change their
sex and name and receive an amended
birth certificate. However, Governor
Chris Christie had vetoed an earlier
measure to reform the birth certificate
process in 2014, and it was uncertain
whether a new veto would result, in
light of the governor’s subsequent
announcement that he will seek the
Republican presidential nomination.
The measure passed the Senate with
enough votes to override a veto, but an
override in the lower chamber seemed
questionable in light of the closeness
of the vote. * * * The East Brunswick
Board of Education adopted a new
policy to protect the rights of transgender
students. A student’s assertion of gender
identity will be accepted when there is
a “uniform assertion” of gender identity,
or if there is any other evidence that the
gender-related identity is “sincere and a
part of the student’s core identity.” This
will carry through to access of facilities
and student dress and grooming. East
Brunswick Sentinel, July 9.
NEW YORK – The North Hempstead
town board voted unanimously on
June 2 to add gender identity to the
prohibited grounds for discrimination
under the code governing municipal
employment. The amendment adds
“gender” to the list of prohibited grounds,
defining it as “actual or perceived
sex and shall also include a person’s
gender identity, self-image, appearance,
behavior or expression, whether or
not that gender identity, self-image,
appearance, behavior or expression
is different form that traditionally
associated with the legal sex assigned to
that person at birth.” Newsday, June 3.
Summer 2015 Lesbian / Gay Law Notes 332
LEGISLATIVE / LAW & SOCIETY
NEW YORK – The New York City
Landmarks Commission voted June 23
to recognize the site of the Stonewall
Inn on Christopher Street in Greenwich
Village as an official New York City
landmark. This is the first time that the
Commission has designated a site solely
on the basis of its historic significance
for the LGBT community. The Stonewall
was the site of resistance to a police
raid of a gay bar that helped to spark a
new activist phase in the movement for
LGBT rights, and that is commemorated
each year by events leading to the last
weekend in June, culminating in a Pride
March in New York City and similar
events in many other locations around
the world.
TENNESSEE – The Chattanooga City
Council voted unanimously on July 14
to approve an ordinance forbidding
discrimination
against
municipal
employees because of sexual orientation
or gender identity, after an amendment
had been approved to “protect employees’
rights to their religious beliefs,” reported
the Chattanooga Times on July 15. Some
criticized the passage of the measure as
unnecessary or premature, because the
city is in the process of putting together
a new employee handbook that is to be
presented to the Council for approval
in several weeks, and these provisions
could have been incorporated into
that and not put up as a stand-alone
measure. It was uncertain whether the
anti-discrimination provisions in the
proposed handbook would precisely
incorporate the text of what was
approved on July 14. The newspaper
article did not include the precise text of
the religious amendment.
TEXAS – Taylor County Commissioner
voted 3-2 on July 14 to allow samesex spouses of county employees to
enroll for insurance benefits. The “no”
voters voiced the sentiment that it is not
the “responsibility” of Taylor County
taxpayers to provide insurance benefits
for same-sex couples. One would ask why
not, since they (including gay residents)
are being taxed to provide benefits to
different-sex couples? According to
Kelly Stephens, the Director of Human
Resources and Risk Management for the
county, because the county’s benefits plan
is self-funded, the county did not have to
offer benefits to same-sex couples. One
of the “yes” voters, however, County
Judge Downing Bolls, said that not
offering the benefits “created a conflict
if we’re covering spouses of not-samesex couples,” which would impose a
“dual standard” that is “discriminatory.”
Also, Stephens commented, providing
the coverage actually would not cost the
county anything, since employees pay
100% of the cost of dependent coverage.
So all the bluster by the “no” voters about
the “taxpayers” was just that – bluster.
Abilene Rep-News, July 15.
VIRGINIA
– The Fairfax County
School Board voted on June 25 to add
sexual orientation and gender identity
sections to the family life curriculum
of the county public schools, having
voted in May to add gender identity to
the non-discrimination policy. Arlington
Catholic Herald, June 30.
WASHINGTON – Seattle Mayor Ed
Murray has introduced legislation that
would require City-controlled and
privately operated places of public
accommodation to designate existing
or future single-occupancy restrooms
as all-gender facilities, in order to
accommodate the needs of transgender
individuals.
The
Seattle
LGBT
Commission proposed the measure to
the Mayor. US Official News, June 27.
WEST VIRGINIA – After a burst of
adverse publicity after transgender
women were denied the right to update
their driver’s licenses to reflect their
333 Lesbian / Gay Law Notes Summer 2015
gender identity, the West Virginia
Division of Motor Vehicles announced
on July 1 that they will no longer dictate
how transgender residents can dress
for their license photos. The policy
changed after the DMV received threats
of lawsuits over the issue from the NYbased Transgender Legal Defense and
Education Fund. latimes.com, July 7.
KEWEENAW
BAY
INDIAN
COMMUNITY – Tribal leaders voted
5-4 to amend their marriage ordinance
to allow same-sex marriages on June
10. Members of the tribe had narrowly
approved same-sex marriage in a nonbinding referendum in December.
However, recognition of such marriages
in the state of Michigan, where most
of the tribe resides, remained in doubt
pending a ruling by the Supreme
Court in Obergefell v. Hodges, since
the 6th Circuit had reversed a federal
court decision from Michigan finding
the state’s ban on recognizing samesex
marriages
unconstitutional.
miningjournal.com, June 10.
LAW & SOCIETY NOTES
AIDS EPIDEMIC – On July 14 the
United Nations issued a progress report
on its Millennium Development Goal
to halt and reverse the spread of HIV.
According to UNAIDS, the agency
charged with implementing the program,
it is possible that the epidemic can be
ended by 2030. “Ending the AIDS
epidemic as a public health threat by
2030 is ambitious, but realistic, as the
history of the past 15 years has shown,”
said Secretary-General Ban Ki-moon in
a report released on that date. The report
said that 15 million people are receiving
antiretroviral treatment for HIV, up from
fewer than 700,000 in 2000, ahead of
the projected date for this goal when
the program was initiated, and that the
cost of HIV-related medications in many
LAW & SOCIETY
countries has sharply declined. Indeed,
Michel Sidibe, Executive Director of
UNAIDS, stated that the key to change in
combating the epidemic was to break up
the pharmaceutical industry’s “tight grip”
on government policies and drug prices,
which has made combating HIV much
more expensive than it needs to be. The
report, as summarized in a COMTEX
News Network report on-line, asserted:
“Legislation
allowing
developing
countries to override patent rights was
critical, allowing them to manufacture
copies of the drugs and cut prices.” The
report stated that AIDS-related deaths
have dropped more than 40% since
2004, now running at about 1.2 million a
year, and new HIV infections had fallen
by 35 percent since 2001 to 2 million a
year in 2014. Investment in combating
HIV/AIDS had climbed to almost $22
billion in 2015, from less than $5 billion
in 2001. New infection among children
has fallen by 58% between 2000 and
2014, by ensuring that women living
with HIV receive medication to prevent
transmission in utero. It was reported that
in June Cuba became the first country to
eliminate mother-to-child transmission
of HIV. * * * Publication of the UN
report brought immediate criticisms that
it was overstating progress, was unduly
optimistic, and failed to acknowledge the
lack of adequate funding and will on the
part of many governments.
VAMPIRES? – UPI Newstrack reported
on July 9 that “self-identified vampires
fear ‘coming out of the coffin’ to social
workers and clinicians because they don’t
want to be judged as evil or mentally ill.”
Sound familiar? The article derives from
a press release on research conducted on
“self-identified vampires” published in
the journal Critical Social Work. The
concerns of these vampires intersect with
their sexuality in some cases. The article
reported that researchers had interviewed
eleven self-identified vampires. “Nearly
all of the participants reported being
female, with one being female-assigned
intersex, one post-operative male-tofemale transgender, one gender-queer,
and one male. . . Researchers reported
five participants identified as bisexual
or bicurious, three as heterosexual, two
as pansexual or omnisexual, and one as
asexual. . . Drawing a difference between
‘lifestyle’ vampires who wear black
clothes and fake fangs, ‘real’ vampires
consume blood from consenting
individuals by using a razor to make
small incisions in their chest and lick or
suck out the blood. They claim to have
different energy needs than other people,
requiring them to ‘feed’ on blood.”
According to one of the academics who
co-authored the study, “The purpose of
the study was to better inform clinicians
about a subset of people who may
need treatment and fall into a category
of alternative identities that often are
judged negatively, including by social
workers. These include bondage and
discipline, dominance and submission,
and sadomasochism practices, all of
which researchers wrote in the study are
not associated with psychopathology.
‘The real vampire community seems
to be a conscientious and ethical one,’
[Professor DJ Williams of Idaho State
University] told Empire State Tribune,
explaining that they need non-judgmental
professionals to be able to honestly seek
help. ‘Most vampires believe they were
born that way – they don’t choose this.”
So much for the literary conceit that
people become vampires as a result of
being bit by other vampires. . .
MORMON CHURCH ON MARRIAGE
EQUALITY – Deseret Morning News
reported that the Council of the First
Presidency and Quorum of the Twelve
Apostles of the Mormon Church issued
a letter to be read in Church meetings
beginning on July 5, in response to the
Supreme Court’s Obergefell decision.
The letter states, “Marriage between a
man and a woman was instituted by God
and is central to His plan for His children
and for the well-being of society. Strong
families, guided by a loving mother
and father, serve as the fundamental
institution for nurturing children,
instilling faith, and transmitting to future
generations the moral strengths and
values that are important t civilization
and vital to eternal salvation.” However,
the letter urges respect for people who
disagree with this view, stating: “The
gospel of Jesus Christ teaches us to love
and treat all people with kindness and
civility – even when we disagree. We
affirm that those who avail themselves
of laws or court rulings authorizing
same-sex marriage should not be
treated disrespectfully,” and the letter
concludes by asking for “all to pray that
people everywhere will have their hearts
softened to the truths God established
in the beginning, and that wisdom will
be granted to those who are called upon
to decide issues critical to society’s
future.” Several months ago Church
representatives were part of a negotiation
to add sexual orientation and gender
identity to Utah’s anti-discrimination
laws on employment and housing,
with a broad religious exemption, but
skirting the problems of individuals and
businesses who wanted to refrain from
entanglement with same-sex marriages
by not adding these categories to the
public accommodations provisions.
Thus, the Church and its spokespeople,
who carry heavy influence in Utah and
some surrounding states with large
Mormon populations, has moderated
its language and is treading a fine line,
quite distinguishable from its heavyhanded intervention in 2008 to help
win enactment of Proposition 8 in
California. The Church seems to be in
a gradual process of figuring out ways
to accommodate the reality of LGBT
people within the Church and in the
areas where the Church plays a major
role in its influence on public policy.
EPISCOPALIANS – The Episcopal
General Convention held in Salt Lake
City voted on July 1 to allow religious
Summer 2015 Lesbian / Gay Law Notes 334
LAW & SOCIETY / INTERNATIONAL
weddings for same-sex couples in
Episcopal Churches. The House of
Bishops approved the resolution by a
vote of 129-26 with 5 abstentions. The
measure takes effect on November 29,
2015. The other mainline protestant
churches that allow such weddings in
the U.S. are the United Church of Christ
and the Presbyterian Church (USA). The
Evangelical Lutheran Church leaves it
up to individual congregations to decide
whether to allow such weddings. The
United Methodist Church bars such
ceremonies, although many of its clergy
have performed the ceremonies as an act
of protest. Associated Press, July 2.
KENTUCKY STATE BAR – Lawyers
seeking to start an LGBT Section of
the Kentucky State Bar had to follow a
circuitous route. In the past, the Kentucky
Supreme Court approved new sections
of the state bar, which is a unified bar in
Kentucky where all lawyers admitted to
practice must be members. However, the
members of the court evidently wanted
to avoid voting on this proposal, so they
delegated to the Board of Governors of
the Kentucky Bar the authority to create
new sections. The Board approved the
proposal, and the new section met for the
first time on June 18 to elect officers and
get organized.
NEW YORK – Governor Andrew Cuomo
sent a letter on June 28 to the New York
Education Department demanding
immediate action to protect transgender
students from discrimination in public
schools in New York State. Cuomo was
responding to a report by the New York
Civil Liberties Union documenting the
continued existence of discrimination
despite passage of the Dignity for All
Students Act, which was supposed to
require schools to take affirmative
steps to deal with this recurring issue.
The report documents delays with
implementation of DASA. Wrote
Cuomo: “I demand that you conduct a
review of your full DASA compliance
for all protected groups covered by
the law. I would like the results of this
exercise within three weeks.” It is
undoubtedly no coincidence that June 28
was Gay Pride Day in New York, and the
governor participated in the annual Gay
Pride March in Manhattan. * * * New
York City Comptroller Scott Stringer has
proposed local legislation that would alter
City building codes to allow building
owners to designate gender-neutral
restroom facilities. Existing codes for
places of public accommodation require
that all facilities be labeled as genderspecific, although some waivers have
been granted. Stringer also proposes that
all publicly-accessible single-occupancy
restrooms become gender-neutral. US
State News, June 26.
EXXONMOBIL – At long last, one of the
nation’s largest employers is falling into
line on LGBT rights. When Exxon merged
with Mobil, the combined corporation
rescinded Mobil’s progressive LGBT
policies, and Exxon was one of the few
major corporations that resisted adding
sexual orientation or gender identity to
its non-discrimination policies. But it
is a major federal contractor, and as a
result of last summer’s Executive Order
by President Obama, it has to adopt an
express non-discrimination policy as
its contracts come up for renewal. So
Exxon has formally amended its policies
in anticipation of the next round of
contracts. New York Times, July 1.
BAYLOR UNIVERSITY – The University
has dropped language from its sexual
conduct policy explicitly outlawing
sexual relationships between same-sex
partners. In fact, the policy dropped
the entire list of prohibited sexual acts,
substituting a statement that “Baylor will
be guided by the biblical understanding
that human sexuality is a gift from
God and that physical intimacy is to
be expressed in the context of marital
335 Lesbian / Gay Law Notes Summer 2015
fidelity.” Of course, Baylor also states
that “Marriage is the uniting of one man
and one woman in covenant commitment
for a lifetime” and emphasizes the
centrality of procreation for marriage.
The University was coy about whether
this signaled a new tolerance for gays
on campus. The Student Senate passed
a resolution two years ago calling
on the University to substitute the
phrase “deviate sexual intercourse” for
“homosexual acts,” which would not
have worked any real practical change
in terms of liberalizing the religiouslyaffiliated school’s policy.
INTERNATIONAL NOTES
EUROPEAN PARLIAMENT – By a
substantial majority vote, the European
Parliament approved a report on gender
equality in Europe calling for legal family
rights for same-sex couples. Taking note
of the evolving definition of family in
Europe, the Parliament recommended
that the rules in the area of family law
“(including implications for workplace
leaves and other family rights) take
into account phenomena such as single
parents and same-sex parenting.” ANSA
English Media Service, June 9.
AUSTRALIA – The Australian Human
Rights Commission issued a report,
authored by Commissioner Tim Wilson,
reporting on a national survey that found
legal discrimination, harassment and
violence against LGBTI Australians,
reported Guardian (U.K.) on June 9. The
report urges the government to amend the
Marriage Act to allow same-sex couples
to marry, arguing that this step is crucial
to protection of the human rights of
LGBTI people. “Marriage is an important
institution that reflects a cultural
understanding of relationship,” says the
report. “By not extending marriage to
same-sex couples, the social exclusion of
same-sex couples is perpetuated.” The
INTERNATIONAL
report also recommends that transgender
children be able to obtain hormone
therapy without having to get a court
order. At present, the Family Court must
authorize such medication. World Today,
June 10.
* * * The Ontario legislature approved
a bill offered by the New Democratic
Party to ban conversion therapy for
minors. The measure is titled “Affirming
Sexual Orientation and Gender Identity
Act.” Globe and Mail, June 4.
BELGIAN FLANDERS – The Philippines
News Agency reported July 10 that
Flanders, the Dutch-speaking region
of Belgium, had announced plans to
install gender-neutral toilet facilities
in all public buildings so as to provide
equal access for transgender individuals.
A special logo will be displayed on the
restroom doors.
CHILE – A comprehensive civil union
law came into force on July 9.
CANADA – The Ontario Superior Court
ruled that Ontario’s Law Society did
not violate the law when it refused to
award accreditation to Trinity Western
University’s proposed new law school.
The Law Society took the position that
TWU’s requirement that students not
have any sexual relations outside of
heterosexual marriages was unlawfully
discriminatory against LGBT applicants
and students. Same-sex marriage is
legal in Canada, but TWU would expect
married gay students to remain celibate
from enrollment through graduation.
A three-judge panel of Justices Frank
Marrocco, Ian Nordheimer and Edward
Then said that the school’s rules effectively
mean that it is closed to LGBT students,
as they would have to “essentially bury a
crucial component of their very identity,
by forsaking any form of intimacy with
those persons with whom they would
wish to form a relationship.” Antidiscrimination laws in Canada forbid
sexual orientation discrimination, so the
school’s requirements would be deemed
unlawful. Denial of accreditation would
make it impractical for the university
to start its new law school. It is also
litigating over denial of accreditation
in British Columbia and Nova Scotia.
The university indicated its intention to
appeal the ruling. Globe & Mail, July 3.
CZECH REPUBLIC – The Supreme
Court has partly recognized a California
court parenthood ruling for a gay couple.
Czech-American Jiri Ambroz is one
of the fathers of a child. As a result of
the ruling recognizing his parental
status, the child may be accorded Czech
citizenship, according to a June 22 report
by the Czech News Agency.
COLOMBIA – Colombia has dropped
the requirement that transgender
people undergo gender reassignment
surgery before the government will
recognize their transition. A decree
from the Ministry of Justice and the
Ministry of the Interior, which went
into effect on June 5, “eliminates
the need for psychiatric or physical
examinations to prove an individual’s
gender identity,” according to a report by
americasquarterly.org (June 9). “Under
the new rules,” it continues, “individuals
need only submit a copy of their civil
registry form, a copy of the identification
card and a sworn declaration expressing
their wish to change their gender identity
in the civil registry.” The notary public
to whom the form is submitted has five
days to complete the procedure. The
individual must wait at least ten years if
they want to make another such change,
and the law limits gender changes to
twice per person.
COSTA RICA – It was reported on June 2
that a gay couple in Costa Rica, Gerald
Castro and Cristian Zamora, were
granted recognition of their commonlaw marriage by the Family Court in
the city of Goicoechea. This was hailed
in the local press as the first legal
recognition of a same-sex relationship
in Central America, but it was uncertain
whether the Castro-Zamora marriage
would be recognized by all units of the
government. The Family Court achieved
this result by interpretation of an
amendment to the Youth Code in 2013
that its sponsor claimed would legalize
same-sex marriages. The amendment
states that common-law marriages
should be granted regardless of gender
and “without discrimination against their
human dignity.” After the measure was
approved, several gay couples filed for
such recognition of their relationships,
but the Castro-Zamora marriage was
the first to be recognized. One catch: the
Youth Code only applies to Costa Ricans
between the age of 12 and 35. ticotimes.
net, June 2. Costa Rican President Luis
Guillermo has announced his intention
to push for a bill to legalize same-sex
unions, which would extend beyond
individuals covered by the Youth Code
provision. EFE Ingles, June 3; Reuters
News, June 3.
CYPRUS – A vote on a proposed civil
union law which was supposed to take
place early in July was postponed until
September.
FINLAND – The Supreme Court imposed
a fine of 18,000 euros (approximately
$20,320) on Kai Telanne, the chief
executive of Alma Media, for dismissing
newly-hired editor-in-chief Johanna
Korhonen when he found out that she
had a politically-active same-sex partner.
The decision affirmed a ruling by the
Helsinki Court of Appeals, but increased
the fine imposed from 7,000 euros to
18,000 euros, finding discrimination
based on sexual orientation and lawful
political activity of the partner. Agence
France Presse English Wire, June 10.
Summer 2015 Lesbian / Gay Law Notes 336
INTERNATIONAL
FRANCE – France’s openly-gay ambassador
to the U.S., Gerard Araud, was celebrated
in the New York Times Sunday Review
on June 7 by columnist Maureen Dowd,
who is particularly noted for his cheeky
Twitter effusions. The article claims that
“Araud was such a star in his job at the
U.N. that the Foreign Ministry asked
him to start tweeting.”
GERMANY – The Bundesrat, the upper
house of the parliament, voted on June
12 to approve a resolution calling for
the legalization of same-sex marriage.
The resolution, titled “Marriage for
All” (borrowing the title of the French
same-sex marriage statute), is not legally
binding. Germany has had a civil union
status for same-sex couples since 2001,
but it does not provide all the rights of
marriage, most notably not authorizing
same-sex couples to adopt children. The
Bundestag, the lower house, is controlled
by a coalition that includes conservative
factions that are strongly opposed to
same-sex marriage, as is Chancellor
Angela Merkel, making it unlikely that
such legislation will be approved there
unless the next national election, in
2017, results in a substantial change of
membership. The upper house action
was described as being inspired by the
recent vote to amend the constitution
of the Republic of Ireland to allow for
same-sex marriages. Draft legislation
permitting same-sex marriage was
referred to a committee in the Budesrat.
If it were approved, it would be referred
to the Bundestag, which would be
obliged to consider it. Agence France
Presse English Wire, June 12. The Irish
Times (July 11) reported that German
President Joachim Gauck, inspired by
the Irish referendum, called for Germany
to enact civil marriage for same-sex
couples, ahead of a state visit to Ireland.
“It should be made clearer that enabling
homosexual people who wish to live in
a legally binding partnership gives them
the chance to live a life of equal value in
love and partnership,” he stated.
GREECE – The government published on
June 10 the text of a proposal to amend the
country’s Civil Partnership Law so as to
allow same-sex couples to register civil
partnerships and be entitled to the same
rights that had previously been accorded
to different-sex civil union partners.
The proposal responds to a decision by
the European Court of Human Rights,
finding that Greece’s adoption of a civil
union law that was not open to same-sex
partners violated its obligations under
the European Convention on Human
Rights. Although the Court has not
yet reached a conclusion that same-sex
couples are entitled to marry in country
that are party to the Convention, as
there is not yet a consensus to that effect
among the signatories, it has found that
legal recognition of same-sex partners
has spread in Europe to the extent that
denial of such recognition with attendant
rights is a violation of the Convention.
Although same-sex partners will be
accorded many of the rights of spouses,
they will not be entitled to adopt children
jointly. However, if a civil union couple
has a child, both partners will be deemed
parents of the child. The ruling Syriza
party had pledge to introduce such
legislation during its successful election
campaign in January. The justice
ministry stated: “With the enactment
of a new civil union pact, Greece will
cease to be one of the last European
countries where same-sex couples do not
receive some kind of official recognition
for their relationship.” Agence France
Presse English Wire, June 10.
IRELAND – The government in the
Republic of Ireland has announced that
it intends to drop the requirement of
medical certification for transgender
people to have their gender identity
recognized on official documents.
Transgender people will be able to selfdeclare their gender identity in order to
get officials documents and services,
including modifying birth certificates.
The only limitation noted was that
337 Lesbian / Gay Law Notes Summer 2015
applicants must be over the age of 18.
This depends, of course, on enactment
of the Gender Recognition Bill now
pending in the parliament. According
to the announcement of the agreement
reached in the cabinet, “A person
who transitions gender will have their
preferred gender fully recognized by
the State for all purposes – including the
right to marry or enter a civil partnership
in the preferred gender and the right to
a new birth certificate.” thejournal.com,
June 3.
ISRAEL – The National Labor Court
ruled on June 2 that the Employment
(Equal Opportunities) Law forbids
gender identity discrimination by
employers, by inference from provisions
banning discrimination due to gender
and sexual orientation. The ruling came
in the case of Meshel v. Center for
Educational Technology. A transgender
woman, Marina Meshel, had been
fired; according to the employer she
was fired for talking about her gender
identity issues with female students at
the Center, while she claimed that she
was fired because the employer learned
that she was transgender. The Tel Aviv
Labor Court had determined that the
discharge was for conduct, not status,
and rejected her claim, but the National
Labor Court approved an award of
damages in the case to compensate
Meshel for being wrongfully discharged.
Times of Israel, June 11; Jerusalem Post,
June 11. * * * A proposal to establish
civil unions or civil marriage in Israel to
accommodate couples (including samesex couples) who cannot be married by
the recognized religious authorities – all
of whom reject same-sex marriage –
went down to defeat in the Knesset on
July 8 by a vote of 39-50. The current
governing coalition includes socially
conservative religious parties, so passage
by the Knesset was not really expected,
even though public opinion polls show,
for example, that about 70% of Israelis
support the right of same-sex couples to
INTERNATIONAL
marry. Israel was founded after World
War II as a Jewish state, and Times of
Israel (July 12) explained in reporting on
the vote that Israel continued the system
that was in place under the prior British
Mandate, which governed the land after
the Ottoman Empire was deposed in
World War I. Under that system, marriage
is a religious status that is recognized
by the state, but only religious bodies
could perform marriages within the
state. However, by virtue of international
treaty obligations and customary
international law, Israel recognizes civil
marriages performed elsewhere, so those
Israelis who do not desire a religious
marriage or can’t qualify to have one
go outside the country to marry, and
their marriages receive government
recognition. In 2006 the High Court of
Justice held that this principle applies
to same-sex marriages, requiring the
state to recognize same-sex marriages
of Israelis that had been performed in
Canada. Israel also has a fairly robust
common law marriage doctrine, under
which cohabitants have a portion of
the rights that go with marriage. Thus,
same-sex marriage exists in Israel in
various forms, even though same-sex
couples cannot formally marry within
the country, and thus cannot really be
said to enjoy full marriage equality.
However, Israel is the only location in
the Middle East where same-sex couples
enjoy at least some degree of legal status
for their relationship.
ITALY – The lower house of the parliament
approved a motion authorizing the
government to seek legislation to allow
same-sex civil unions. The motion by
the Democratic Party passed on its first
reading, committing the government
“to promote the adoption of a law on
civil unions, particularly with regard
to the condition of the people of same
sex,” and commits the government to
“ensure equal treatment throughout the
nation.” Prime Minister Matteo Renzi
has stated that “civil unions cannot
be delayed any longer,” presumably
reflecting the emerging consensus that
failure to provide a legal status to samesex couples would violate the emerging
human rights standard in Europe.
Pink News, June 10. * * * The Court
of Appeal of Naples issued a ruling
requiring local authorities to register a
same-sex marriage contracted in France
by a French-born lesbian couple who
had origins in Italy and were living in
Italy while maintaining dual citizenship.
According to a translation we received,
the opinion stated: “There is no doubt
that the failure [by Italy] to register the
marriage of two French women, lawfully
entered into in France. . . only because
they reside in Italy (which has not yet
prepared forms to guarantee same-sex
civil unions), would represent a violation
of the exercise of the rights associated
to their status as spouses. Italy cannot
refuse to recognize such status only
because it has not (yet) introduced forms
of protection of such civil unions for its
citizens.” The court’s ruling appears to
be keyed to the special circumstances
of the couple, and would not necessarily
carry over to any Italian same-sex
couple who went to another EU country
where same-sex marriage is allowed,
got married, returned to live in Italy
and demanded that their marriage be
registered. According to a press release
from the couple’s lawyer, Alexander
Schuster, this may be the first ruling of
its kind. He writes: “No other judgment
from a EU country not providing for any
form of legal recognition of same-sex
unions is known. The judgment is not
yet final and likely to be reviewed by the
Italian Supreme Court of Cassation.”
JAPAN – The Japan Times (July 8)
reported that hundreds of LGBT people
filed a request on July 7 with the Japan
Federation of Bar Associations for
support in legalizing same-sex marriage.
The Bar Association will investigate
their contention that failure to allow
same-sex marriages is a violation of
human rights, and may issue a report
urging the central government to review
its policy on this issue. Although such
a report would be nonbinding, one of
the lawyers involved contended that it
could have a “far-reaching” effect on the
nation’s legislative and judicial process,
due to the prestige of the Association.
MALAYSIA – A Sharia court in Malaysia
convicted nine transgender women
under a law that prohibits “a male person
posing as a woman,” imposing fines
and jail terms, according to a June 22
news report from RTT News. The arrests
arose from a club raid on June 16, and
the defendants all pled guilty. A lawyer
filed an appeal. * * * Legal Monitor
Worldwide (June 22) reported that a
transgender woman failed in an attempt
to get her legal status changed to female
when the High Court dismissed her
application, saying it was bound by prior
UK cases and a 2013 court of appeal
decision.
MEXICO – The Supreme Court of
Mexico ruled on June 3 that same-sex
couples have a right to marry under
Mexico’s constitution and that its
ruling is “jurisprudence,” which means
that it creates a binding precedent on
lower courts. This is to incentivize
state legislators to alter existing
statutes accordingly. Under the nation’s
jurisprudence, a single Supreme Court
ruling on a constitutional question
is apparently not enough to declare
the battle over, since rulings apply in
particular provinces from which appeals
are brought. The June 3 ruling involved
a case from Colima state. Because this
is the fifth case in which the Supreme
Court has struck down a ban on samesex marriage, it creates a constitutional
principle, but that is not self-enforcing,
as continuing litigation around the
country shows. Lower courts would
be bound to follow it, but it is not clear
that state and local legislators would be
Summer 2015 Lesbian / Gay Law Notes 338
INTERNATIONAL / PROFESSIONAL
obliged to revise their marriage statutes.
* * * On June 11, it was reported that the
government in Chihuahua had bowed to
demands for same-sex marriage after it
appeared likely that a court would award
damages to a large group of same-sex
couple who had sued after being denied
the right to marry there. * * * On July 10,
twenty same-sex couples participated in
a mass wedding on an Acapulco beach
with Guerrero state’s governor and wife
as witnesses. Governor Rogelio Ortega
promoted the event despite opposition
from some other local politicians and
Catholic Church leaders. Following
the Supreme Court’s June 3 ruling,
Governor Ortega instructed civil
registries in the state to approve samesex marriage licenses, overriding
opposition from Acapulco’s mayor.
Similar confrontations and dramas were
playing out around the country during
June and July. It seemed likely that the
U.S. Supreme Court decision of June 26
would provide additional ammunition
for local marriage equality advocates
seeking to bring their states into line
with the trend in North America, where
Canada has had nationwide same-sex
marriage recognition since 2005. It was
expected that over the next few months
the legislatures in various of Mexico’s
more than thirty states would take up
proposals to amend their statutes to take
account of the Supreme Court ruling, as
it was likely that the state governments
would face potential damage claims if
individual couples had to continue going
to court to get judges to order that they
be issued marriage licenses.
MOZAMBIQUE – Legislation went into
effect on June 29 decriminalizing private
consensual gay sex, departing from the
widespread outlawing of homosexual
conduct by African nations. According
to International Business Times News
(June 2), this would still leave 35
African nations that deem homosexual
conduct a crime, including two (Sudan
and Mauritania) that impose the death
penalty. The action in Mozambique was
part of a general process of updating the
penal code to meet international human
rights standards.
PAKISTAN – Two men who claim
that their “gay wedding” was just a
joke discovered that law enforcement
authorities in Pakistan lack a sense
of humor. The men were arrested, as
was the man who “officiated” at their
ceremony. They were forced to undergo
medical examinations, and the police
concluded based on the results that the
men had sex with each other in violation
of the country’s criminal law, Section
277 of the Penal Code, which covers
“unnatural offenses.” They may receive
life prison sentences. Washington Post,
June 18.
PITCAIRN ISLAND – The British
Overseas Territory of Pitcairn Island,
population 48, passed a law that came
into effect on May 15 allowing samesex marriages. It was seen as largely
symbolic, since nobody was aware of
any gay couples on the island seeking
to marry, but it was seen as bringing
the island into conformity with British
law and emerging international human
rights trends. Hope was expressed
that it might promote tourism for the
financially strapped island. Associated
Press, June 22.
SOUTH KOREA – Inspired by the U.S.
Supreme Court’s Obergefell decision,
a gay couple in South Korea filed suit
seeking the freedom to marry. Kim Jho
Gwang-Soo and Kim Seung-Hwan filed
an action in the district court in Western
Seoul on July 6. They had an outdoor
wedding ceremony in Seoul in September
2013, but the local authority refused to
register their marriage at that time. Daily
Tribune (Bahrain), July 7. * * * A court
in Seoul ruled on June 16 that the police
violated the law when they banned a gay
339 Lesbian / Gay Law Notes Summer 2015
pride march that was scheduled to be
held on June 28 as part of Korean Queer
Cultural Festival. The police had denied
the permit on grounds of conflicts
with other permits that had previously
been sought by Christian conservative
activists, who were specifically seeking
to provoke the conflict in order to
prevent the pride march. Wrote the court,
“Unless there is a clear risk of danger to
the public, preventing the demonstration
is not allowed and should be the absolute
last resort.”
TAIWAN – Republic of China – The
city of Taipei on June 17 opened a
registry for same-sex couples. Although
the registration will have very limited
effect, it might be used by the couples
in dealing with hospitals, courts and
the police, and is viewed as a symbolic
first step towards legal recognition.
GayStarNews, June 18.
PROFESSIONAL NOTES
Lambda Legal has announced that
KEVIN CATHCART, Executive Director
of the organization since 1992, will retire
in April 2016 at the end of his current
contract. Prior to joining Lambda,
Cathcart was Executive Director of Gay
& Lesbian Advocates & Defenders in
Boston from 1984 to 1992. He is the
longest-serving executive director of
any LGBT movement organization. At
Lambda he presided over the quintupling
of the staff and expansion to several
regional offices, and led the organization
in many noteworthy legal campaigns,
including the successful effort to
strike down sodomy laws nationwide
in Lawrence v. Texas, a case in which
Lambda represented the defendants
appealing the case through the Texas
courts to the U.S. Supreme Court.
Lambda also participated as counsel or
amicus in several other Supreme Court
cases during Cathcart’s leadership of the
PROFESSIONAL
President Barack Obama has appointed
SHANNON PRICE MINTER, Legal
Director of the National Center for
Lesbian Rights, to the President’s
Commission
on
White
House
Fellowships, the body that selects
candidates to serve as White House
Fellows, recent college graduates who
spend a year as full-time paid assistants
to senior White House staff members.
Media reports focused on the fact that
Minter is a transgender man. Huffington
Post, June 8.
The Pennsylvania Senate voted
unanimously to confirm DR. RACHEL
LEVINE, a transgender woman, to be
the state’s Physician General and serve
as a cabinet-level appointment and chief
medical advisor to the state’s Department
of Health. The unanimous confirmation
was considered remarkable because the
Senate is controlled by Republicans,
who have refused to take up proposed
legislation that would ban discrimination
because of sexual orientation and
gender identity. Governor Tom Wolf
identified Dr. Levine as an expert in
pediatrics and psychiatry. AP State
News, June 9. She has also been very
active in LGBT politics, serving on the
board of Equality Pennsylvania, the
state’s LGBT rights lobbying group.
Dr. Levine is a professor of pediatrics
and psychiatry at Pennsylvania State
College of Medicine’s Hershey Medical
Center. Advocate.com.
ROBERTA KAPLAN, a partner at Paul
Weiss who represented Edith Windsor
in the epochal U.S. Supreme Court case
of U.S. v. Windsor, ending the refusal
by the federal government to recognize
same-sex marriages, was awarded
an honorary doctorate by the Jewish
Theological Seminary of America
(JTS). JTS is the flagship rabbinical
school of the Conservative Movement
of American Judaism. The awarding of
this degree shows the important distance
that JTS and Conservative Judaism have
progressed on LGBT issues. In 1990,
JTS refused to allow NYC’s LGBT
synagogue to list its rabbi search with
the seminaries placement office, and
at that time had not yet progressed to
the position of allowing openly gay
people to enroll in its rabbinical training
program. Today there are openly gay
and lesbian Conservative rabbis, and the
Conservative movement files pro-gay
amicus briefs in Supreme Court cases.
The Tennessean published a lengthy
tribute on July 9 to ABBY RUBENFELD,
a Tennessee lawyer who was the first
legal director of Lambda Legal Defense
& Education Fund in the 1980s and,
more recently, the lead attorney in a
Tennessee marriage equality case that
became part of Obergefell v. Hodges
before the Supreme Court.
The Transgender Legal Defense Fund
has honored the law firm DAVIS POLK
& WARDWELL LLP at its annual
Freedom Awards benefit in New York
on June 1. Davis Polk has provided pro
bono services assisting 175 transgender
people with their name-change petitions
through TLDEF’s Name Change Project.
Summer 2015 Lesbian / Gay Law Notes 340
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organization, including Romer v. Evans,
Boy Scouts v. Dale, U.S. v. Windsor, and
Obergefell v. Hodges. Other particularly
notable Lambda achievements during
these years included winning marriage
equality lawsuits in Iowa and New Jersey
and establishing important precedents in
the 9th Circuit (challenging the discharge
of a lesbian military officer), 11th Circuit
(establishing equal protection rights
of transgender public employees), and
the 7th Circuit (vindicating the claim
of a gay high school student subjected
to merciless harassment) and many
others. Lambda’s board will undertake
a nationwide search for Cathcart’s
successor beginning in the fall of 2015.
PUBLICATIONS NOTED
1. Appleton, Susan Frelich, Surrogacy and
Windsor’s Penumbras, 90 Wash. L. Rev.
Online 43 (2015).
2. Arkles, Gabriel, Regulating Prison Sexual
Violence, 7 Northeastern U. L. J. 71
(2015).
3. Assil, Sanam, Can You Work It? Or Flip It
and Reverse It?: Protecting LGBT Youth
From Sexual Orientation Change Efforts,
21 Cardozo J.L. & Gender 551 (Winter
2015).
4. Balent, Alvan, Jr., Get It Right, Florida:
Why the Florida Supreme Court Should
Rule that Equal Protection Claims of
Sexual
Orientation
Discrimination
Receive Intermediate Scrutiny, 44 Stetson
L. Rev. 759 (Spring 2015).
5. Box, Lauren, It’s Not Personal, It’s Just
Business: The Economic Impact of LGBT
Legislation, 48 Ind. L. Rev. 995 (2015)
(making the economic case for LGBT
rights).
6. Chang, Helen, California Putative
Spouses: The Innocent, the Guilty, and
the Law, 44 Sw. L. Rev. 327 (2014).
7. Coleman, Franciska A., Democracy
and the Other: The Inverse Relationship
Between
Majority
Rule
and
a
Heterogeneous Citizenry, 117 W. Va. L.
Rev. 1153 (Spring 2015).
8. Courtney, Paul Vincent, Prohibiting
Sexual Orientation Discrimination in
Public Accommodations: A Common
Law Approach, 163 U. Pa. L. Rev. 1497
(2015).
9. Dailey, Anne C., The Psychodynamics
of Sexual Choice, 57 Ariz. L. Rev. 343
(2015)(suggests that under the precedent
of Lawrence v. Texas, criminal liability
for consensual adult S&M sex should
generally not be imposed).
10. Den Otter, Ronald C., Three May Not Be
a Crowd: The Case for a Constitutional
Right to Plural Marriage, 64 Emory L.J.
1977 (2015).
11. Dillender, Marcus, Health Insurance and
Labor Force Participation: What Legal
Recognition Does for Same-Sex Couples,
33 Contemp. Econ. Pol’y 381 (2015).
12. Ertman, Matha M., Love’s Promise: How
Formal and Informal Contracts Shape All
Kinds of Families (Boston: Beacon Press,
2015) (part of series: Queer Action/Queer
Ideas)(see below under Specially Noted).
13. Faderman, Lillian The Gay Revolution
(N.Y.: Simon & Schuster [ISBN: 9781-4516-9411-6], 2015) (history of the
14.
15.
16.
17.
18.
19.
20.
21.
341 Lesbian / Gay Law Notes Summer 2015
struggle for gay rights in the United
States, through the 2013 US Supreme
Court decision of U.S. v. Windsor).
Fellmeth, Aaron X., Leading From (A
Bit) Behind: The United States and
International Human Rights Law, 40 N.C.
J. Int’l L. & Com. Reg. 977 (Summer
2015) (US falls short by not protecting
gays from discrimination).
Fore, Wyatt, DeBoer v. Snyder: A Case
Study in Litigation and Social Reform,
22 Mich. J. Gender & L. 169 (2015) (one
of the consolidated cases making up
Obergefell v. Hodges).
Forward (The Editors), Paper Symposium:
Polygamous Unions? Charting the
Contours of Marriage Law’s Frontier,
64 Emory L.J. 1669 (2015) (individual
articles noted by authors).
Goldnick,
Layla,
Coddling
the
Internet: How the CDA Exacerbates
the Proliferation of Revenge Porn and
Prevents a Meaningful Remedy For Its
Victims, 21 Cardozo J.L. & Gender 583
(Winter 2015).
Gordon, Andrew J., End Around: HIV
Discrimination in the Post-Amendments
Act Workplace, 36 Berkeley J. Emp.
& Lab. L. 215 (2015) (how the lack of
federal statutory protection against sexual
orientation discrimination undermines
the policy goal of protecting people living
with HIV under the ADA Amendments
Act of 2008).
Greene, Abner S., Religious Freedom and
(Other) Civil Liberties: Is There a Middle
Ground?, 9 Harv. L. & Pol’y Rev. 161
(Winter 2015) (critiques aspects of Hobby
Lobby decision; recognizes the problem in
the same-sex marriage context with small
businesses that have religious objections
to providing goods and services, but
punts….).
Griffin, Leslie C., Hobby Lobby: The
Crafty Case That Threatens Women’s
Rights and Religious Freedom, 42
Hastings Const. L.Q. 641 (Summer 2015)
(shows inconsistency between Hobby
Lobby and same-sex marriage cases that
reject the imposition of religious beliefs
on non-believers).
Guiora, Amos N., No Excuses: Protection
the Vulnerable after Brown v. Buhman,
35 N. Ill. U. L. Rev. 317 (Spring 2015)
(Offering documentation of harmful
effects of polygamous cohabitation in
response to district court’s invalidation
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
of Utah criminal cohabitation statute for
lack of evidence of harmful effects; note
that briefing is completed on the state’s
appeal which will be argued in the 10th
Circuit soon).
Haley, Daniel, Bound by Law: A Roadmap
for the Practical Legalization of BDSM,
21 Cardozo J.L. & Gender 631 (Winter
2015) (We would never have expected
to find an article of this type in Yeshiva
University’s Law Review. . . How times
have changed!).
Hamilton, Marci A., The Case for
Evidence-Based
Free
Exercise
Accommodation: Why the Religious
Freedom Restoration Act is Bad Public
Policy, 9 Harv. L. & Pol’y Rev. 129
(Winter 2015).
Hawkins, Stacy, Diversity, Democracy &
Pluralism: Confronting the Reality of Our
Inequality, 66 Mercer L. Rev. 577 (Spring
2015).
Henry, Chris, Wider Vision: Hate Speech
Law, Public Opinion and Homosexual
Rights in Germany and the United States,
30 Conn. J. Int’l L. 123 (Spring 2015).
Hermann, Donald H.J., Defending the
Public Good and Traditional Society:
Non-Scriptural Religious Objections to
Same-Sex Marriage, 49 Val. U. L. Rev. 1
(Fall 2014).
Higdon, Amy E., and Emily J. Barry,
Recent Developments in Indiana Family
Law, 48 Ind. L. Rev. 1297 (2015) (includes
brief discussion of same-sex marriage
developments in 2014 and custody/
visitation issues pre-dating marriage
equality in Indiana).
Inks, Nathan, The Issue of Standing in
United States v. Windsor: A Constitutional
Error That Impacted the Integrity of
the Judicial Process, 60 Wayne L. Rev.
891 (Spring 2015) (argues S. Ct. should
have found that federal government did
not have standing to appeal in U.S. v.
Windsor).
Jackson, Vicki C., Constitutional Law
in an Age of Proportionality, 124 Yale
L.J. 3094 (June 2015) (argues that courts
should use balancing tests more frequently
in deciding constitutional claims).
Johnson,
Michael,
Institutionalized
Indifference: Rape with a View, 23 J.
Prisoners on Prisons No. 1 (2014).
Joslin, Courtney G., Marital Status
Discrimination, 95 B.U. L. Rev. 805 (May
2015) (argument for expanding federal
PUBLICATIONS NOTED
32.
33.
34.
35.
36.
37.
38.
39.
laws to prohibit discrimination because
of marital status).
Knauer, Nancy J., LGBT Elders in a PostWindsor World: The Promise and Limits
of Marriage Equality, 24 Tex. J. Women,
Gender, & L. 1 (Fall 2014).
Kovalchek, Brielle N., Do Actions Speak
Louder Than Words?: An Analysis of
Conversion Therapy as Protected Speech
versus Unprotected Conduct, 16 Rutgers
J. L. & Religion 428 (Spring 2015) (While
stating agreement with conclusion that
bans on practice of conversion therapy
by licensed health-care providers on
minors are not unconstitutional, prefers
3rd Circuit’s protected speech approach
over 9th Circuit’s unprotected conduct
approach).
Lobo, James, Behind the Venire:
Rationale, Rewards and Ramifications
of Heightened Scrutiny and the Ninth
Circuit’s Extension of Equal Protection to
Gays and Lesbians During Jury Selection
in SmithKline v. Abbott, 56 B.C. L. Rev.
E-Supplement 106 (2015) (contends that
abolition of peremptory strikes would be
more beneficial to gay potential jurors
than the 9th Circuit’s application of
Batson).
Marvel, Stu, The Evolution of Plural
Parentage:
Applying
Vulnerability
Theory to Polygamy and Same-Sex
Marriage, 64 Emory L.J. 2047 (2015).
McClain, Linda C., The Civil Rights
Act of 1964 and “Legislating Morality”:
On Conscience, Prejudice, and Whether
“Stateways” Can Change “Folkways”,
95 B.U. L. Rev. 891 (May 2015) (the
role of arguments about morality in the
enactment of civil rights laws).
McDaniel-Miccio, Kris, Tzadek, Tzadek
Tirdof – Justice, Justice You Shall
Pursue: Romer, Lawrence, & Windsor:
A Critique of Justice Scalia’s Dissenting
Opinions, 21 Cardozo J.L. & Gender 317
(Winter 2015) (Calling out Justice Scalia
for infusing religious belief and ideology
into his dissenting opinions in LGB rights
cases).
McMillian, Jacob R., After “I Do”, 62JUN Fed. Law. 42 (June 2015) (discusses
legal priorities for the LGBT rights
movement after a Supreme Court decision
in Obergefell v. Hodges).
Moser, Megan, Intestacy Concerns for
Same-Sex Couples: How Variations in
State Law and Policy Affect Testamentary
40.
41.
42.
43.
44.
45.
46.
Wishes, 38 Seattle U. L. Rev. 1523
(Summer 2015
Murray, Melissa, Griswold’s Criminal
Law, 47 Conn. L. Rev. 1045 (May
2015) (How the Griswold case’s right to
privacy holding worked a major reform in
criminal law culminating in Lawrence v.
Texas).
Nejaime, Douglas, and Reva B. Siegel,
Conscience Wars: Complicity-Based
Conscience Claims in Religion and
Politics, 124 Yale L.J. 2516 (May 2015)
(the dangers of recognizing religious
liberty claims that have third-party
effects).
Palmer, Shane, No Legs to Stand
On: Article III Injury and Official
Proponents of State Voter Initiatives, 62
UCLA L. Rev. 1056 (May 2015) (argues
that Hollingsworth v. Perry should
be overruled and that state initiative
proponents should be allow to appeal
adverse decisions when state officials
refuse to defend the constitutionality of
initiative measures).
Pizer, Jennifer C., Navigating the
Minefield: Hobby Lobby and Religious
Accommodation in the Age of Civil
Rights, 9 Harv. L. & Pol’y Rev. 1 (Winter
2015).
Pomerance, Benjamin, What Might
Have Been: 25 Years of Robert Bork
on the United States Supreme Court, 1
Belmont L. Rev. 221 (2014) (After the
Senate refused to confirm President
Reagan’s appointment of Robert Bork
to the Supreme Court, the position as
eventually filled by Anthony Kennedy;
author explores how key cases might have
been decided had Bork been confirmed;
conclusion that the gay rights case would
have come out the same way, although
Bork would not have voted as Kennedy
did in Romer and Lawrence [article does
not consider Windsor]).
Porter, Jonathan A., L’Amour for Four:
Polygyny, Polyamory, and the State’s
Compelling Economic Interest in
Normative Monogamy, 64 Emory L.J.
2093 (2015).
Rienzi, Mark L., Substantive Due Process
as a Two-Way Street: How the Court
Can Reconcile Same-Sex Marriage
and Religious Liberty, 68 Stan. L. Rev.
Online 18 (May 23, 2015) (argues that a
marriage equality decision premised on
due process would be preferable to one
47.
48.
49.
50.
51.
52.
53.
54.
55.
56.
57.
premised on equal protection in order to
accommodate anti-gay-marriage views in
a post-Obergefell world).
Rocha, James, The Homophobic Sexual
Harassment Claim and Sexuality
Discrimination 28 Ratio Juris 204 (2015).
Sachs, Stephen E., Originalism as a
Theory of Legal Change, 38 Harv. J.L. &
Pub. Pol’y 817 (Summer 2015).
Singer, Joseph William, We Don’t Serve
Your Kind Here: Public Accommodations
and the Mark of Sodom, 95 B.U. L. Rev.
929 (2015).
Strassberg, Maura I., Scrutinizing
Polygamy: Utah’s Brown v. Buhman and
British Columbia’s Reference Re: Section
293, 64 Emory L.J. 1815 (2015).
Strauss, Gregg, Why the State Cannot
“Abolish Marriage”: A Partial Defense
of Legal Marriage, 90 Ind. L.J.
1261 (Summer 2015) (responding to
suggestions that states abandon legal
marriage as a response to the movement
for marriage equality).
Tebbe, Nelson, Religion and Marriage
Equality Statutes, 9 Harv. L. & Pol’y Rev.
25 (Winter 2015) (alert to the dangers of
religious exemptions in marriage equality
laws).
Thompson, Erik S., Compromising
Equality: An Analysis of the Religious
Exemption in the Employment NonDiscrimination Act and Its Impact on
LGBT Workers, 35 B.C. J.L. & Soc. Just.
285 (Spring 2015).
Turley, Jonathan, The Loadstone Rock:
The Role of Harm in the Criminalization
of Plural Unions, 64 Emory L.J. 1905
(2015).
Vanderhorst, Blaise, Whither Lies the Self:
Intersex and Transgender Individuals and
a Proposal for Brain-Based Legal Sex, 9
Harv. L. & Pol’y Rev. 241 (Winter 2015).
Williams, Parker, Scrutiny of the Venire,
Scrutiny from the Bench: SmithKline
Beecham Corp. v. Abbott Laboratories and
the Application of Heightened Scrutiny
to Sexual Orientation Classifications, 64
Cath. U. L. Rev. 803 (Spring 2015).
Witte, John, Jr., Why Two in the Flesh?
The Western Case for Monogamy Over
Polygamy, 64 Emory L.J. 1675 (2015)
(lengthy exploration of arguments
pro and con on legalizing polygamy,
demonstrating why allowing same-sex
marriage does not require allowing
polygamy).
Summer 2015 Lesbian / Gay Law Notes 342
Lesbian/Gay
Notes
Lesbian/Gay
LawLaw
Notes
Podcast
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EDITOR’S NOTES
This proud, monthly publication
is edited and chiefly written by
Professor Arthur Leonard of New
York Law School, with a staff of
volunteer writers consisting of
lawyers, law school graduates,
current law students, and legal
workers.
All points of view expressed in
Lesbian/Gay Law Notes are those
of the author, and are not official
positions of LeGaL – The LGBT
Bar Association of Greater New
York or the LeGaL Foundation.
Check out the Lesbian/Gay Law Notes Podcast
each month to hear our Editor-In-Chief New York
Law School Professor Art Leonard and Matthew
Skinner, the Executive Director of LeGaL, weigh-in
on contemporary LGBTQ legal issues and news.
Listen through iTunes or at
legal.podbean.com!
All comments in Publications
Noted are attributable to the
Editor. Correspondence pertinent
to issues covered in Lesbian/Gay
Law Notes is welcome and will
be published subject to editing.
Please submit all correspondence
to [email protected].
SPECIALLY NOTED
In Love’s Promises (Beacon Press, 2015), Prof. Martha M. Ertman has provided an eminently readable and useful book
about the role of contracts in the new family diversity landscape. Although the book predates the Supreme Court’s decision
in Obergefell v. Hodges, it remains timely for all those dealing with LGBT family law as it explores the formal and informal
agreements characteristic of “non-traditional” families, discusses how such agreements can be used to the advantage of the
parties, and suggests strategies for legal planning for such families. At the time the book was completed, same-sex couples
could already marry in many states and the book takes this into account in its discussion of the application of contract
principles to family formation. The legal discussion is humanized with many examples from the author’s life experience
as a lesbian mother maintaining a continuing contractual relationship with the good gay male friend who agreed to be her
sperm donor and to assume some parenting responsibilities as well as her same-sex partner/spouse, whose relationship with
her post-dates the birth of her child. Their family relationship is embodied in their own written contract. * * * In Equal
Before the Law: How Iowa Led Americans to Marriage Equality (Iowa and the Midwest Experience), Des Moines Register
reporters Tom Witosky and Marc Hansen present a detailed account of how marriage equality came to Iowa through the first
unanimous state supreme court decision for same-sex marriage. This is a paperback original published by the University
of Iowa Press on June 1, 2015.
The Williams Institute at UCLA Law School has announced the Dukeminier Awards Journal for 2014, with the following
articles reprinted from their original publications as the Best Sexual Orientation and Gender Identity Law Review Articles
of 2014: Jessica Clarke, Inferring Desire (Duke L.J.); Brian Coucek, Perceived Homosexuals: Looking Gay Enough for
Title VII (Am. U. L. Rev.); Elizabeth Sepper, Doctoring Discrimination in the Same-Sex Marriage Debates (Ind. L.J.);
Andrew Karp, “A Sincerely Held Belief”: What LGBT Refugee and Asylum Law Can Learn from Free Exercise Claims and
Post-DOMA Immigration Benefits for Same-Sex Couples (Jeffrey S. Haber Price for Student Scholarship).
343 Lesbian / Gay Law Notes Summer 2015